Children's Rights

Foster care agencies that contract with the government shouldn't discriminate, ABA says in amicus brief

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Child's drawing of a family with gay parents

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When contracting with the city of Philadelphia to provide foster care services, Catholic Social Services must adhere to the government’s nondiscrimination policies, the ABA told the U.S. Supreme Court on Thursday.

In an amicus brief filed in Fulton v. City of Philadelphia, Pennsylvania, the ABA noted that according to Supreme Court precedent, the government can put conditions on participation in its programs, and in this case, the city of Philadelphia did not violate the religious foster care agency’s rights under the First Amendment.

“To promote the best interests of children, the ABA has … long advocated policies that ensure there is no invidious discrimination in the administration of foster care systems that would be adverse to the interests of children in foster care,” the amicus brief states.

Catholic Social Services, along with foster parents Sharonell Fulton and Toni Simms-Busch, filed the cert petition in the case in July 2019. They argued that Catholic Social Services was excluded from Philadelphia’s foster care system because the city and the Archdiocese of Philadelphia disagreed over marriage.

“As a Catholic agency, CSS cannot provide written endorsements for same-sex couples which contradict its religious teachings on marriage,” they said in the petition, which was granted by the Supreme Court in February. “The mayor, city council, Department of Human Services, and other city officials have targeted CSS and attempted to coerce it into changing its religious practices in order to make such endorsements.”

Catholic Social Services filed an injunction to force the city of Philadelphia to renew its public services contract. The 3rd U.S. Circuit Court of Appeals at Philadelphia affirmed the lower court’s denial of the injunction, holding that the agency “failed to make a persuasive showing that the City targeted it for its religious beliefs, or is motivated by ill will against its religion, rather than sincere opposition to discrimination on the basis of sexual orientation.”

The city of Philadelphia said in its brief in opposition in the case that contracts between its Department of Human Services and Catholic Social Services both prohibited discrimination on specific grounds and required compliance with its Fair Practices Ordinance.

“This ordinance precludes discrimination based, among other things, on race and sexual orientation,” the city said. “DHS has never authorized providers to refuse to certify, let alone refuse to establish fostering relationships with, prospective parents because of their membership in any protected category, including sexual orientation.”

“By insisting that city contractors adhere to the terms of their contracts in carrying out the City’s obligations to children in its care, Philadelphia is not violating the First Amendment rights of those contractors,” the ABA’s amicus brief states. “Rather, Philadelphia is simply requiring that any private agency—insofar as that private agency voluntarily contracts to perform a governmental function in the administration of Philadelphia’s foster care system—act in compliance with the terms of that contract.”

The Supreme Court will now consider three questions: whether plaintiffs can only succeed by proving a particular type of religious discrimination claim; whether to revisit the 1990 decision in Employment Division v. Smith, which held the government can enforce laws that burden religious beliefs or practices if the laws are “neutral” or “generally applicable”; and whether the government violates the First Amendment by compelling a religious social service agency to take actions and make statements that conflict with its beliefs in order to participate in the foster care system.

The ABA has significant experience in issues relating to foster care and has advocated against discrimination in the administration of foster care systems that would harm children in those systems.

In 1999, the association adopted policy supporting laws that provide sexual orientation should not be a bar to adoption, and in 2019, adopted policy addressing discrimination against LGBTQ people who are parents or who desire to be parents through fostering or adoption.

Oral arguments have not yet been scheduled in this case.

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