SCOTUS Ruling on Same-Sex Foster Care Harms LGBTQ Youth, Adults

The U.S. Supreme Court ruled June 17, in a narrowly tailored decision in Fulton v. City of Philadelphia, that a Catholic foster care agency may discriminate against same-sex couples. The court unanimously rejected the invitation to grant government-funded faith-based agencies a license to discriminate.

Instead, it decided that a provision in Philadelphia’s contract with Catholic Social Services (CSS) that ostensibly allowed exceptions to city nondiscrimination requirements meant the requirements were not generally applicable. The court also ruled that the “city did not offer a compelling reason why it has an interest in denying Catholic Social Services an exception while having them available to others.”

Notably, the court found that the city’s interest in the equal treatment of prospective foster parents and foster children a “weighty one,” but that it did not carry the day under the facts of this case.

The Supreme Court was right to find Philadelphia’s interest in protecting LGBTQ+ children and families from discrimination “weighty.” LGBTQ+ youth are over-represented in foster care compared to their presence in the general population, and they and LGBTQ+ families have faced and continue to face discrimination in the child welfare system.

Lambda Legal contributed a friend-of-the-court brief in Fulton explaining that discrimination by publicly funded child welfare agencies sends a harmful government-endorsed message to LGBTQ+ youth in foster care, telling them that same-sex couples are not suitable to be parents and are second-class citizens under the law.

Case History

In this case, Philadelphia learned that a contract agency had turned away a same-sex couple seeking to foster. It then reached out to other agencies to see if others were similarly violating contractual terms and the city’s Fair Practices Ordinance.

CSS informed the city that it would not certify same-sex couples as foster parents, citing religious beliefs, and refused to comply. Philadelphia then terminated CSS’s foster care licensing and requirement contract (CSS maintained other foster care contracts) and CSS sued. The two lower courts ruled in favor of the city.

For now, married same-sex couples in Philadelphia cannot work with all agencies as can married different-sex couples. This is clearly harmful and treats them as second-class citizens.

Importantly, although CSS ultimately prevailed in this case, the court did not award religious institutions a license to discriminate against LGBTQ+ people for religious reasons. The court specifically declined to rule on whether the religious beliefs of businesses or nonprofits permit discrimination against LGBTQ+ people and evaded the question of whether a compelling interest exists in prohibiting LGBTQ+ discrimination in public accommodations.

The Court’s Decision

Chief Justice John Roberts wrote that given the room for discretionary exceptions, Philadelphia’s protections fell outside the purview of Employment Division v. Smith and that the city appeared to treat religion differently relative to other justifications for exemptions. The ability for government to protect LGBTQ+ individuals from discrimination consistent with Smith remains.

Also, of note, the court deemed that foster care is not a public accommodation due to the “customized and selective” nature of foster parenting certification and state and local public accommodation law. This determination deviates from the court’s practice of accepting state and local law as the court finds them and misunderstands the foster parent application process.

Not in Children’s Best Interest

While some applicants may ultimately not meet specific requirements to be a foster parent given their history or current life situation, all are welcome to apply and none should be turned away at the gate because of their identity, their beliefs, or whom they love.

Although this decision has a detrimental impact on LGBTQ adults in Philadelphia, children are at the heart of this dispute. When a child is placed in state-regulated foster care, the state has an affirmative duty to make decisions considering their best interests.

Any system that excludes same-sex foster parents or people of faith or no faith based on the religious criteria of a provider is not in the best interest of children. Child welfare experts and advocates filed powerful amicus briefs in the case explaining why child welfare professional standards require nondiscrimination to ensure, among other reasons, a diverse pool of foster parents, minimizing the placement of children in institutional care if they cannot safely return to their parents.

Lambda Legal’ s clients in Marouf v. Azar and Rogers v. HHS are same-sex married couples who were denied the opportunity to foster children because of their sexual orientation and for failing to meet religious criteria, and exemplify the impact of Fulton’s ruling.

More Legal Protections Are Needed

Ensuring all children and families are treated with dignity and respect and that same-sex couples, who are more likely to foster and adopt children than their different-sex counterparts, is essential when in a system where government is responsible for the best interests of children.

Many faith-based organizations are affirming and supportive of LGBTQ+ youth and families. This narrow ruling, however, contributes further to the perceived legal entitlement of faith-based organizations to discriminate while utilizing taxpayer’s money.

Given the recent string of SCOTUS religious liberty holdings, a worrisome trend is revealed that favors a license to discriminate in the name of religion and the need for strong federal, state, and local nondiscrimination protections.

This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.

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Sruti Swaminathan is a staff attorney at Lambda Legal where she advocates on behalf of LGBTQ+ Youth. Prior to Lambda, Swaminthan practiced in the litigation department of Willkie Farr & Gallagher LLP, where she spent much of her legal career supporting underserved populations, including LGBTQ+ people and undocumented immigrants.