Supreme Court to rule on anti-gay discrimination by taxpayer-funded foster care agencies
Court will decide whether child placement agencies that discriminate based on religion are entitled to taxpayer funds
The U.S. Supreme Court has agreed to hear a case about whether foster care agencies that receive taxpayer money should be allowed to discriminate against prospective parents based on the agency’s stated religious beliefs.
At the crux of the case is a dispute between Catholic Social Services and the city of Philadelphia over the city’s policy prohibiting taxpayer money from going to agencies or contractors that do not abide by the city’s law prohibiting discrimination against LGBTQ people.
Philadelphia contracts with private agencies to provide services to children in the city’s foster care system. But in 2018, the city stopped referring foster children to Catholic Social Services because of the agency’s refusal to license qualified same-sex couples as foster parents or allow them to adopt children currently in the agency’s care.
CSS sued, claiming its refusal to place children with same-sex couples is based on its belief that marriage is reserved for only those unions between one man and one woman, and that the city’s policy therefore violates its religious freedom by punishing it for holding those beliefs.
The American Civil Liberties Union and ACLU of Pennsylvania brought a motion, which was eventually granted, on behalf of the Support Center for Child Advocates and Philadelphia Family Pride seeking to intervene in the case.
The two pro-LGBTQ organizations have since argued that overturning the city’s policy would harm LGBTQ families and children in the foster care system waiting to be placed in loving homes.
A federal district judge and the 3rd U.S. Circuit Court of Appeals sided with the city, saying it can require child placement agencies that wish to receive taxpayer dollars to agree to accept all qualified prospective foster or adoptive parents.
CSS appealed the case to the Supreme Court, arguing in a petition filed with the court that it has a constitutional right to discriminate against prospective foster families who do not adhere to CSS’ preferred religious beliefs.
Taxpayer-funded agencies, most notably Miracle Hill Ministries in South Carolina, have cited their religious beliefs as justification for refusing to place children with families of non-Protestant faiths, families who are not religious, same-sex couples, or unmarried individuals.
But LGBTQ advocates, including the ACLU, argue that if the court were to side with CSS, they would effectively be shrinking the pool of available foster families by allowing agencies across the nation to flout local laws and turn away prospective parents. Currently, there are an estimated 440,000 children in foster care across the country.
“We already have a severe shortage of foster families willing and able to open their hearts and homes to these children,” Leslie Cooper, the deputy director of the ACLU LGBT & HIV Project, said in a statement referring to those children in foster care throughout the country. “Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse.
“We can’t afford to have loving families turned away or deterred by the risk of discrimination,” Cooper added. “When agencies choose to accept taxpayer dollars to provide this critically important government service to children, the needs of children must come first.”
Lambda Legal, which submitted an amicus brief to the 3rd Circuit Court of Appeals on behalf of itself and nine organizations serving LGBTQ youth, also pointed out the harm that could result from shrinking the pool of available foster families.
“By imposing their religious view of what families must look like and seeking to discriminate against same-sex couples, CSS simply hurts the children they claim to serve,” Karen Loewy, senior counsel for Lambda Legal, said in a statement. “We can also cannot overlook the profound impact on LGBTQ young people, who are overrepresented in the child welfare system, frequently due to issues around rejection by their families of origin on account of their sexual orientation or gender identity, when they receive hurtful messages from child welfare providers insisting that people like them are not good enough or are not deserving of equal treatment and dignity.
“The Supreme Court has the opportunity to affirm the basic principle that when agencies accept government money to provide services to children involved in the public foster care system, their religious beliefs are not a license to discriminate,” Loewy added.
Other pro-LGBTQ and allied groups also called on the courts to uphold the 3rd Circuit’s ruling and find in favor of the city of Philadelphia.
“Religious-based agencies that accept taxpayer funds must act in the best interests of the children in their care. Sexual orientation, gender identity, faith, or other characteristics unrelated to a prospective parent’s abilities to provide a safe home should not affect placement decisions,” Winnie Stachelberg, the executive vice president for External Affairs at the Center for American Progress. “These agencies cannot be allowed to weaponize religious freedom in order to deprive children of welcoming homes and loving families.”
“The appellate court correctly held that the City of Philadelphia’s anti-discrimination regulation is neutral and not motivated by hostility toward religion, but by a sincere and legitimate interest in ensuring that the pool of foster parents and resource caregivers is as diverse and broad as the foster care children they serve,” Christina Wilson Remlin, the lead counsel at Children’s Rights, said in a statement. “I urge the Court to prioritize the interests of foster children and uphold Philadelphia’s non-discrimination policy.”
“It is unconscionable to turn away prospective foster and adoptive families because they are LGBTQ, religious minorities, or for any other reason unrelated to their capacity to love and care for children,” HRC President Alphonso David said in a statement. “We reject the suggestion that taxpayer-funded child welfare services should be allowed to put discrimination over a child’s best interest.
“This case could also have implications for religious refusals that go far beyond child welfare,” David added. “The Supreme Court must make it clear that freedom of religion does not include using taxpayer funds to further marginalize vulnerable communities.”
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