November 2018 Church & State | People & Events

The city of Philadelphia does not have to contract with religiously affi­li­ated foster-care placement agen­cies that engage in discrim­inatory policies against potential foster parents, Americans United argued in a legal brief filed Oct. 4.

The case, Fulton v. City of Phila­delphia, concerns a decision by Philadelphia officials to stop refer­ring children to Catholic Social Services for foster-care placements after the religious group made it clear that it would not accept same-sex couples as foster parents.

Catholic Social argues that it has a constitutional right to be ex­­­­­emp­ted from provisions of its contract with the city that prohibit discrimination based on sexual orien­tation against prospective foster parents. A federal district court ruled in favor of the city, and now the case is on appeal before the 3rd U.S. Circuit Court of Appeals.

“Children in foster care need loving homes,” said Rachel Laser, president and CEO of Americans United. “Many caring same-sex couples are eager to help, and it not only makes no sense to stand in their way, but it’s also unconstitutional to award taxpayer dollars to services that discriminate on religious grounds.”

AU’s brief argues that in making foster-care placements on behalf of the city, Catholic Social is behaving as a state actor and thus has no right to discriminate. The brief further explains that the U.S. Constitution prohibits the city from funding or contracting with an entity that discriminates for religious reasons, or based on sexual orientation, in deciding whom it will serve.

“Here, allowing Catholic Social to discriminate in approving prospective foster families would substantially harm people who do not adhere to Catholic Social’s religious belief that same-sex couples should not marry,” observes the brief. “Most obviously, permitting this discrimination would burden the same-sex couples turned away by Catholic Social, who would not receive the same consideration to be foster parents (and thereby to parent children in need) as other couples would, and would thus receive a message that they are worthy of less respect from a government-sanctioned, government-fund­ed program.

“Such obstacles could cause same-sex couples to give up on foster parenting entirely,” continues the brief. “And that, in turn, would harm children who need and would benefit from the loving foster parents who are turned away, including LGBTQ children who may benefit from being raised by LGBTQ couples familiar with the particular challenges that the children may face growing up.”

Added Alex J. Luchenitser, Americans United’s associate legal director: “Public funds must never support discriminatory practices. People seeking government-sponsored services must never be turned away because of their religion or sexual orientation.”

The brief was drafted by Luchenitser, together with Americans Uni­ted Legal Director Richard B. Kats­kee, and Legal Fellows Claire Hillan and Jon Dugan.

AU and a coalition of allied groups also successfully defeated a legislative proposal at the federal level that would have allowed similar discrimination against prospective parents and kids in care. Republican members of the U.S. House of Representatives in July tucked discriminatory language into a routine spending bill for three federal departments: Health and Human Services, Labor, and Education.

Known as the Aderholt amendment, this provision would have permitted child welfare agencies that receive federal funding to cite religion to justify refusing to place children in need of stable homes with loving families because prospective parents were LGBTQ, single, previously divorced or even the “wrong religion.” It would have also let these agencies discriminate against the kids in care. 

AU helped organize a letter from hundreds of civil rights and child welfare organizations in urging members of Congress to oppose the amendment,  and was successful: The final version of the bill that was signed into law had the harmful adoption language stripped from it.