Child Welfare

Supreme Court Rules on Foster Care Non-Discrimination Case

June 24, 2021 | National

Last week, the Supreme Court issued a unanimous ruling in the consequential Fulton v. City of Philadelphia case, finding in favor of Catholic Social Services, which argued that its religious liberties were being violated when its contract with the City of Philadelphia was cancelled because the agency refused to certify same-sex couples as foster parents.

In 2018, the city learned that two faith-based organizations were violating its ban on discrimination by refusing to license same-sex couples as foster parents. When the city informed the two organizations that it would no longer refer children to them, one organization changed their policies. The other, Catholic Social Services, filed a lawsuit alleging that the city’s ban on taxpayer-funded discrimination encroached on the organization’s freedom of religion. The lawsuit demanded that the city renew their contract, allowing them to continue to receive taxpayer funds despite refusing to certify potential foster families due to their sexual orientation or gender identity.

The Children’s Defense Fund proudly joined an amicus brief on behalf of the City of Philadelphia. As we have argued many times—including in response to a waiver given to South Carolina to allow discrimination and to the Trump Administration’s announcement that it would not enforce existing non-discrimination policies in child welfare—discrimination in any form is inherently harmful to children and, as such, is diametrically opposed to the ideals of child welfare. Allowing discrimination in child welfare, particularly when there is a huge shortage of foster families and more than 120,000 children waiting to be adopted, is unconscionable. It would mean more kids will end up in institutional settings, will linger in foster care, and will age out without a permanent family. Additionally, state-sanctioned discrimination sends the message to LGBTQ youth—who often enter the system because of abuse they faced due to their sexual orientation or gender identity and who face higher rates of discrimination and emotional, physical, and sexual abuse than their cisgender, heterosexual peers once they are in foster care—that because of who they are and who they love, they are not capable of creating a loving family.

The Supreme Court did not touch on these arguments in their decision, instead ruling narrowly and focusing on the City of Philadelphia’s contract and sidestepping the larger question of whether state and local non-discrimination policies that protect people on the grounds of sexual orientation and gender identity violate the First Amendment. The Court found that the non-discrimination requirement in the city’s standard foster care contract violated Catholic Social Services’ right to free exercise of religion on the grounds that, in light of a provision allowing the city to grant discretionary exceptions to the non-discrimination policy, the city lacked a compelling reason to deny an exception to Catholic Social Services while making them available to others.

The narrow ruling will only apply to the specific contract between Philadelphia and Catholic Social Services and not to state and local non-discrimination policies more broadly. It will still allow local, state, and federal governments to maintain laws and policies that prohibit discrimination in taxpayer-funded services.

While this decision did not undermine the right of state and local governments to protect children and families from taxpayer-funded discrimination, it does underscore how tenuous these protections can be. The decision is a potent reminder of how crucial it is that we pass the John Lewis Every Child Deserves a Family Act (S.1848/ H.R. 3488) to ensure that all children and youth in the child welfare system are safe from discrimination, no matter where they live or who they love. 

To become law, the John Lewis Every Child Deserves a Family Act will need to garner strong support in the House and Senate. If your organization would like to endorse the bill, you can do so here. If you would like to support this legislation as an individual, you can do so here.