Tag: Agencies

How Big Could the Impact Be if Child Service Agencies Are Allowed to Discriminate?

How Big Could the Impact Be if Child Service Agencies

The U.S. Supreme Court is currently considering a case that could let taxpayer-funded adoption and foster care agencies around the country use their religious beliefs as a reason to discriminate against LGBTQ people and others. New research from the Movement Advancement Project (MAP) shows the widespread impact that could have on children in care.

Fulton Infographic - Movement Advancement Project

Infographic from MAP’s August report, “The High Stakes in the Fulton Case

In a report released yesterday, “What’s at Stake in Fulton: Kids in the Foster System” (PDF), MAP used data from the Children’s Bureau (part of the Department of Health and Human Services) to show that more than 1,200 child placement agencies contract with city, county, and/or state governments to care for children. Of those, 39.8 percent agencies are religiously affiliated, mostly (88 percent) with mainstream Christian denominations.

Depending on how the Supreme Court rules in Fulton v. City of Philadelphia, the case it heard in early November, agencies around the country could be allowed to discriminate, and many children in the foster care system would be at risk. MAP notes that of course, “Just because an agency is religiously affiliated does not mean that it would seek a license to discriminate against LGBTQ families, single people, unmarried couples, or families who do not share the agency’s faith. In fact, many of these agencies would continue to serve diverse families even if the Supreme Court granted them a license to discriminate.”

At the same time, they warn, “The risk is not merely hypothetical. There are already clear examples of agencies seeking the ability to discriminate. And a June 2020 survey by the Center for American Progress and NORC at the University of Chicago found that two in five LGBTQ people said it would be “very difficult” or “not possible” to find another child placement agency if they were turned away by one, MAP relates.

MAP’s analysis of 2019 data also shows that children in the foster care system in the states that permit taxpayer-funded agencies to discriminate* were less likely to be placed with relatives and more likely to experience multiple placements, both of which are destabilizing and can negatively impact their well-being. States that allowed such discrimination made a combined 13 percent fewer placements with relatives compared to states without such legislation. And in those states, 5.4 percent more children (or a more than 9 percent increase) had two or more foster placements during their time in government care, as compared to other states. That difference equals an estimated 3,500 more children that experienced multiple placements. “If the Court granted a nationwide exemption to religious agencies, that 5.4% difference would amount to nearly 23,000 children currently in the foster system nationwide,” MAP concludes.

To counter the argument that closing religiously affiliated agencies that discriminate will have a similarly (or worse) negative effect on the homes available for children, MAP also notes that there is “no evidence that states with nondiscrimination policies have fewer registered foster families or more children in group homes than those without such laws.”

The court is expected to issue its ruling sometime in 2021, likely before the end of June. This is a case all of us should be watching.


*Kansas, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, and Virginia all allow this; Tennessee passed its legislation in 2020, though, so its data was not included in the MAP analysis. Alabama and Michigan also allow religiously based discrimination, but not if agencies receive taxpayer funds.

Supreme Court Considers Whether Child Service Agencies Can Discriminate Against LGBTQ People

Next Week, a Crucial SCOTUS Case on Discrimination in Foster

Even as we have been waiting for the results of the presidential election, the U.S. Supreme Court heard a case yesterday that will determine whether taxpayer-funded foster care and adoption agencies—and possibly any provider of government-contracted services—can cite religious beliefs as a reason to discriminate against LGBTQ people and others. Here are some of the arguments made.

U.S. Supreme Court

For detailed background on the case, Fulton v. City of Philadelphia, I refer you to my piece from last week. In short, it began in 2018, when the City of Philadelphia stopped referring foster children to Catholic Social Services (CSS) because the agency would not license qualified same-sex couples to be foster or adoptive parents. CSS then brought a lawsuit in federal district court, which ruled for the city, as did an appeals court. CSS appealed to the Supreme Court, which took the case in February 2020. In June, the Trump administration filed a brief siding with CSS.

Yesterday, in front of a court that included the newly seated Amy Coney Barrett, lawyers for both CSS and the city presented their cases. All of the justices pushed on the question of whether CSS, in taking the city’s contract, was doing the city’s work or doing its own work and simply being licensed by the city. If the latter, the city would have less authority to enforce its nondiscrimination laws.

Justice Sonia Sotomayor pointed out that the city was paying CSS, and the government does not pay entities to take a license. Justice Stephen Breyer noted that the city isn’t asking CSS to endorse marriage for same-sex couples, merely that they meet the statutory requirements to be foster parents.

Prompted by more conservative Justices Samuel Alito and Brett Kavanaugh, however, CSS claimed that no same-sex couple had ever applied to the agency. If they had, it said, they would simply have been referred to another agency. CSS also emphasized its 200-year history of providing services to children and families and said the city was targeting it because of its religion.

Attorney Neal Katyal, arguing for the city, said it is not targeting CSS because of its religious beliefs, but because there are no exemptions to the city’s nondiscrimination laws. This isn’t a matter of religion versus LGBTQ rights, they said, but rather of religion versus religion. A ruling in favor of CSS could mean that people are turned away from government services because of their religion.

Alito, however, seemed to side with CSS in opining that the city wasn’t actually trying to ensure that same-sex couples could be foster parents, but that it simply “can’t stand the message that Catholic Social Services and the Archdiocese are sending by continuing to adhere to the old-fashioned view about marriage.”

CSS also argued to overturn the 1990 Supreme Court case Employment Division v. Smith, in which former Justice Antonin Scalia, writing for the majority, said that Free Exercise Clause of the Constitution, which permits freedom of religion, does not mean that there are exemptions from “a neutral, generally applicable law” that is “not specifically directed to religious practice.” It was hard to tell if the justices seemed interested in overturning Smith, however.

Additionally, Hashim Moopan, a Justice Department lawyer arguing for CSS, said that the city does permissibly consider race or disability in placing children with foster parents. Why can’t it also consider sexual orientation? The city’s lawyers countered that there was a difference between child placements and the screening of potential parents, and it is the latter, where there are no exceptions, at issue here. When asked if CSS’ position of allowing exemptions to nondiscrimination laws could lead to discrimination on the basis of race, Moopan indicated that it wouldn’t, leading Breyer to ask whether “discrimination on the basis of race is different from discrimination based on gender, religion, and sexuality.” Moopan responded that “Race is unique in this country’s constitutional history,” and that eradicating racial discrimination “presents a particularly unique and compelling interest.” When pushed by Justice Elena Kagan on whether it is a compelling state interest to eradicate discrimination against gays and lesbians, he equivocated.

Alito seemed to side with the idea that racial discrimination and discrimination against same-sex couples are fundamentally different, citing Obergefell v. Hodges, the 2015 decision that legalized marriage for same-sex couples. “Didn’t we say in Obergefell that there are honorable reasons to continue to oppose same-sex marriage?” he asked. (The Obergefell decision, written by former Justice Anthony Kennedy, does indeed say, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”)

Justice Brett Kavanaugh also brought up this point in Obergefell, and told the city’s lawyers that while he understood the “stigmatic harm” of CSS’ policy on same-sex couples, “What I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers.”

Overall, the justices seemed split along ideological lines, although Chief Justice John Roberts’ thinking was less clear. The newest justice, Barrett, while she didn’t seem eager to overturn Smith, at one point tried to get Katyal to respond to a hypothetical situation in which a city has taken over all health care and contracts with private entities to provide it. Must a Catholic hospital then perform abortions? Katyal replied that the current case does not involve a government monopoly of previously private services, and that the government takeover of a private care system in itself raises constitutional problems.

Depending on how the court rules, the case could have far-reaching implications beyond just child services, as I explained last week. What’s next? Now we wait—even longer than for the outcome of the presidential election. A decision is expected by the end of the court’s current term next June.

H/t to C-SPAN and to ACLU lawyers Chase Strangio and Josh Block, who live tweeted the hearing.

Should Child Welfare Agencies Be Able to Cite Religion to Discriminate? Experts Urge Supreme Court to Say No

Should Child Welfare Agencies Be Able to Cite Religion to

More than 1,000 experts and organizations filed nearly 50 briefs with the U.S. Supreme Court yesterday arguing that taxpayer-funded child welfare agencies should not be able to discriminate against LGBTQ people and others by citing religious beliefs. The implications of this case could go far beyond child welfare, however.

Fulton Infographic - Movement Advancement Project

The case, Fulton v. City of Philadelphia, began in 2018, when the City of Philadelphia stopped referring foster children to Catholic Social Services (CSS) because the agency would not license qualified same-sex couples to be foster or adoptive parents, a violation of the city’s anti-discrimination laws. CSS then brought a lawsuit in federal district court, claiming those laws impinged on their freedom of religion. Both the district court and an appeals court ruled in the city’s favor, saying that it can require foster care agencies with city contracts to adhere to the city’s nondiscrimination laws. CSS appealed to the U.S. Supreme Court, which said in February that it would hear the case this fall; this past Wednesday it scheduled oral arguments for November 4.

In June, the Trump administration filed a brief siding with CSS and saying that taxpayer-funded child service agencies should be allowed to discriminate. Now, major LGBTQ organizations, child welfare professional associations, LGBTQ youth service providers, faith-based foster care agencies, faith leaders, legal scholars, civil rights organizations, bipartisan elected officials, and others have filed 46 friend-of-the-court briefs opposing such discrimination. Freedom for All Americans, one of the groups involved in the strategy behind the briefs, helped recruit signatories including approximately 450 faith leaders and clergy, 35 current and former Republican elected officials and leaders, more than 30 national businesses, and more than 165 mayors and local governments (including the U.S. Conference of Mayors) representing 50 million Americans.

A new report released this week by the Movement Advancement Project (MAP) further shows the harms of religious exemptions in the child welfare system. Among other things, the report reminds us of the extent of taxpayer funding in the system, with $7.3 billion in dedicated federal child welfare funding going to states and counties and then to individual child-placing agencies, and an estimated $29.9 billion in federal, state, and local funds spent on child welfare in 2016. The impact of allowing discrimination in this system would be immense, as MAP explains:

Research finds that Black and Native American children, children with disabilities, and LGBTQ youth are overrepresented in the child welfare system. That’s why robust nondiscrimination protections within the child welfare system based on race, religion, gender, disability, sexual orientation, gender identity, and other characteristics are so important even though many states lack explicit protections for sexual orientation,  gender identity, and gender expression. Without such protections, children may be mistreated or separated from their families because of factors unrelated to their safety and well-being, and otherwise qualified families may be denied the ability to foster and adopt children in need.

Depending on how the Supreme Court rules and how broad or narrow its ruling is, the Fulton case could create a license to discriminate that would go against the best interests of the hundreds of thousands of children and millions of families who receive services through the system, MAP says.

This undermines the very premise of taxpayer-funded social services: that they are designed to serve all of the public.

Beyond child welfare, a very broad ruling could even “result in nearly every entity that receives government funding, ranging from child welfare agencies to soup kitchens and those offering job training programs, being able to claim a religious exemption to a wide array of regulations and laws.” It could mean that “government-funded service providers choosing to serve only those who share their own beliefs or refusing to provide critical services to those who don’t.”

MAP doesn’t pull any punches: “This undermines the very premise of taxpayer-funded social services: that they are designed to serve all of the public.”

Visit the Freedom for All Americans website to read more about the case, sign up for updates, and learn how you can help spread the word about the harm of using taxpayer funds to discriminate.