Oct 04, 2018

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 for Separation of Church and State argues in a legal brief filed today.

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 doing 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, Legal Fellow Claire Hillan, and Legal Fellow Jon Dugan (a 2018 law-school graduate not yet admitted to the bar).