October 2020 Church & State Magazine - October 2020

Denied The Right To Care: Supreme Court To Decide If Publicly Supported Foster Care Agencies Can Engage In Religious Discrimination

  Liz Hayes

When it comes to the welfare of children in foster care, the government’s top priority should be placing vulnerable kids in safe homes with loving families.  

That should also be the top priority of the agencies that apply for government contracts – and rake in millions of taxpayer dollars – to place those children in foster and adoptive homes.

But some government-contracted foster care agencies don’t see it that way. Instead, their priority is advancing, on the taxpayers’ dime, a religious mission, which includes rejecting any families who can’t pass their rigid religious litmus tests.  

On Nov. 4, the day after Election Day, one of those agencies will ask the U.S. Supreme Court to create a constitutional right to misuse religious freedom and discriminate against qualified families because they are LGBTQ, belong to the “wrong” religion, don’t go to the right kind of church or don’t follow other religious tenets required by the agencies. 

The case comes at a challenging time: Across the country, nearly half a million children are in foster care, and the coronavirus pandemic and resulting economic crisis have reduced the number of available foster families. Thus, the justices’ decision could result in even fewer available homes for kids in need if the court agrees that agencies can cite religious beliefs as a valid reason to turn away qualified families.  

But the impact of a negative decision in Fulton v. The City of Philadelphia could extend far beyond foster care. If the court agrees to redefine religious freedom and grant taxpayer-funded agencies the right to apply their religious beliefs in ways that harm other people, the same right might apply to other government-service providers like homeless shelters, food banks, hospitals and disaster-relief services. Desperately needed services could be denied to millions of vulnerable residents, especially LGBTQ people, women, religious minorities, the nonreligious and others. 

“The Supreme Court should affirm that the Constitution’s promise of religious freedom does not confer a right to harm others,” said Americans Uni­ted Legal Director Richard B. Kats­kee. “Religious freedom is a fundamental American value. So is protecting vulnerable children. One should not come at the expense of the other.”

The case originated in 2018 when Philadelphia officials learned from a journalist that two faith-based agencies with city contracts to provide foster-care services were refusing to place children with same-sex couples – a practice that violated the nondiscrimination provisions in the city’s contracts.

The city said it would cease referring children to the agencies – Beth­any Christian Services and Cath­o­lic Social Services – as long as the contractors were refusing to abide by city contracts. Bethany relented and agreed to follow the nondiscrimination provisions, but Catholic Social Services refused and sued the city with the help of the Christian nationalist law firm The Becket Fund for Religious Liberty. 

Both the federal district court and the 3rd U.S. Circuit Court of Appeals ruled in favor of Philadelphia, affirming that the city is not constitutionally required to hire contractors that discriminate in the name of religion. But Catholic Social Services petitioned the Supreme Court to hear the case, and the justices agreed. 

Dozens of faith-based, child-welfare and civil-rights organizations, plus legal scholars and groups of government officials including mayors and members of Congress, have submitted friend-of-the-court briefs in support of Philadelphia, including Americans United. In August, AU filed a brief on behalf of four prospective foster families who shared with the court their devastating stories of being turned away because they didn’t share the religious beliefs of taxpayer-funded placement agencies.

Two of the families are clients represented by AU in other lawsuits: Aim­ee Maddonna and her family in South Carolina, and Fatma Marouf and Bryn Esplin in Texas. (Lambda Legal is co-counsel with AU in the latter case.)

Maddonna, a mother of three from Simpsonville, S.C., wanted to continue the family tradition started by her parents of helping children in foster care. She reached out to Miracle Hill Ministries, a prominent taxpayer-funded agency in her region. Miracle Hill representatives said her family would be a perfect fit – until the agency learned the Maddonnas are Catholic. Miracle Hill rejected the Maddonnas because they aren’t evangelical Protestants. 

“It was demoralizing to hear that we are not good enough because we aren’t the right kind of Christians,” Maddonna told the court. She said the rejection “was particularly offensive because I felt like I was not just being proselytized by a religious group against my beliefs. I was being coerced by the government to participate in the religious program.” 

Marouf and Esplin are a married same-sex couple who became interested in fostering a refugee child through Marouf’s work. Catholic Charities Fort Worth, which provides foster care on behalf of the federal government for unaccompanied refu­gee children, approached Marouf about a partnership with the Immigrant Rights Clinic she directs at Texas A&M School of Law. After learning about the program, Marouf and Esplin felt compelled to help these children and inquired about fostering. But even as Catholic Charities sought to work with Marouf professionally, the agency said she and her wife could not be foster parents because, as a same-­sex couple, they didn’t “mirror the holy family.”

“It was so disappointing and hurtful to be told that we don’t qualify to foster refugee children simply because of who we are and who we love,” Marouf told the court. “For us, it really came as a surprise, because we felt like we were approaching a government program. It never even occurred to me that they would discriminate against us based on our sexual orientation.” 

Two other families who experienced Miracle Hill’s discriminatory practices also told their stories in AU’s brief. 

When Lydia Currie lived in Green­ville, S.C., she tried to become a foster-adoptive parent for older children in institutional care. Too backlogged to process her application, the state Department of Social Services recommended that Currie apply to foster children through government contractor Miracle Hill Ministries.

But as soon as she read Miracle Hill’s application, Currie, who is Jewish, knew she would be turned away because the agency demanded a letter of reference from a “Bible-believing” church and a “personal testimony about our relationship with Jesus Christ.” 

“The message could not have been clearer,” Currie told the court. “And when somebody tells you that a hurting child is better off at their orphanage than living in your Jewish home, it doesn’t make you feel good about yourself.”  

Currie ultimately was able to adopt two children through other agencies, and now lives in Philadelphia. But her outrage remains over the discriminatory practices of Miracle Hill, and now of Catholic Social Services in her current home city. 

“There is nothing wrong with being a religious child-welfare advocate – I am one myself,” Currie wrote. “[But] when a child needs shelter and support and a chance to begin healing, the adults who control the child’s immediate future – as government agents – cannot have a separate agenda that overrides the child’s welfare.” 

Eden Rogers and Brandy Welch were equally offended to be told their faith and their marriage weren’t good enough for Miracle Hill. Rogers and Welch are a married same-sex couple who live near Greenville with their two daughters. Yearning to grow their family, they applied to foster children through Miracle Hill. They were denied because they are a same-sex couple and are of the Unitarian Universalist faith. 

“We work hard to raise our own two girls in a loving and stable home,” the couple told the court. “Faith is a part of our family life, so it is hurtful and insulting to us that Miracle Hill’s religious view of what a family must look like deprives foster children of a nurturing, supportive home.”  

Compounding the insult, Miracle Hill told the couple they might be allowed to volunteer by sorting clothes at the ministry’s thrift store or at some other task – as long as they would not be in “positions of spiritual responsibility or influence” over children.

While the experiences of religious discrimination were shocking and hurtful for the families, they said their concern is primarily for the children who had to wait even longer in foster care before being placed with loving families – if indeed they were placed at all.

“How many children simply age out of the system [and are] sent off into the world utterly alone? How egregiously have we failed those children when that happens?” Currie asked. “Leaving a child in an institution for even one extra day because the supply of foster parents has been artificially constrained is simply incompatible with the state’s duty to ensure the protection and healing of children in its custody.”  

Maddonna agreed: “It was difficult for my family, of course, but at the end of the day my kids still have parents. These foster children need and deserve to have someone looking out for them, and the government is taking that away. … They don’t have moms at their football games or Sunday night dinners around the table. These children are still in an institution. That isn’t right, it isn’t fair and it isn’t necessary.”                        

Congress needs to hear from you!

Urge your legislators to co-sponsor the Do No Harm Act today.

The Do No Harm Act will help ensure that our laws are a shield to protect religious freedom and not used as a sword to harm others by undermining civil rights laws and denying access to health care.

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