SCOTUS decision on gay foster families hurts LGBTQ youth and adults

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The United States Supreme Court ruled on June 17, in a decision narrowly Fulton v. City of philadelphia, that a Catholic foster care agency may discriminate against same-sex couples. The court unanimously rejected the invitation to license government-funded faith-based agencies to discriminate.

Instead, he ruled that a provision in Philadelphia’s contract with Catholic Social Services (CSS) that ostensibly allowed exceptions to the city’s non-discrimination requirements meant the requirements were not generally applicable. The court also ruled that “the city has not provided a compelling reason why it has an interest in denying Catholic social services an exception while making them available to others.”

In particular, the court ruled that the city’s interest in the equal treatment of future foster parents and foster children was “important”, but that it was not right on the facts. of this case.

The Supreme Court was correct in considering that Philadelphia’s interest in protecting LGBTQ + children and families from discrimination was “important”. LGBTQ + youth are over-represented in foster care relative to their presence in the general population, and they and LGBTQ + families have been and continue to be discriminated against in the child welfare system.

Lambda Legal has contributed court friend memory in Fulton explaining that discrimination by state-funded child welfare agencies sends a government-approved harmful message to LGBTQ + youth in foster care, telling them that same-sex couples are not fit to be parents and are second-class citizens by law.

Case history

In this case, Philadelphia learned that an outsourcing agency turned down a gay couple seeking to foster a child. He then contacted other agencies to see if others similarly violated contract terms and the city’s Fair Practices Ordinance.

The CSS informed the city that it would not certify same-sex couples as adoptive parents, citing religious beliefs, and refused to comply. Philadelphia then terminated CSS’s license and foster care requirement agreement (CSS maintained other foster care contracts) and CSS took legal action. The two lower courts ruled in favor of the city.

At this time, same-sex married couples in Philadelphia cannot work with all agencies, just like different-sex married couples. This is clearly damaging and treats them like second-class citizens.

Importantly, although the CSS ultimately prevailed in this case, the court did not license religious institutions to discriminate against LGBTQ + people on religious grounds. The court specifically declined to rule on whether the religious beliefs of businesses or nonprofits allow discrimination against LGBTQ + people and sidestepped the question of whether there was a compelling interest in banning the LGBTQ + discrimination in public places.

The court’s decision

Chief Justice John Roberts wrote that given the possibility of discretionary exemptions, Philadelphia’s protections fell outside the purview of Division of Employment c. Smith and that the city seemed to treat religion differently from other justifications for exemptions. The government’s ability to protect LGBTQ + people from discrimination in accordance with Black-smith remains.

In addition, it should be noted that the court ruled that foster care was not public accommodation due to the “personalized and selective” nature of the certification of foster parents and the law on foster care. local and national public housing. This decision departs from the court’s practice of accepting state and local laws as the court finds them and misunderstands the foster parent application process.

Not in the best interests of the children

While some applicants may ultimately not meet the specific requirements to be a foster parent given their history or current life situation, all are welcome to apply and none should be turned down at the door due to their status. identity, his beliefs or the person he loves.

While this decision has a negative impact on LGBTQ adults in Philadelphia, children are at the heart of this conflict. When a child is placed in a state-regulated foster family, the state has a duty to make decisions based on their best interests.

Any system that excludes same-sex foster parents or people of faith or faithlessness based on a provider’s religious criteria is not in the best interests of the children. Child protection experts and advocates have filed powerful amicus briefs in the case explaining why professional standards in child protection require non-discrimination to ensure, among other reasons, a diverse pool of foster parents, minimizing placement of children in institutions if they cannot return safely to their parents.

Lambda Legal clients in Marouf vs. Azar and Rogers v. HHS are same-sex married couples who have been denied the opportunity to place children in foster care because of their sexual orientation and because they do not meet religious criteria, and illustrate the impact of by Fulton decision.

More legal protections are needed

Ensuring that all children and families are treated with dignity and respect and that same-sex couples, who are more likely to welcome and adopt children than their opposite-sex counterparts, is essential in a system where the government is responsible for the best interests of children.

Many faith-based organizations support and support LGBTQ + youth and families. This narrow decision, however, further contributes to the perceived legal right of faith-based organizations to discriminate while using taxpayer money.

In light of the recent spate of SCOTUS religious freedom detentions, a disturbing trend is revealed that favors an authorization to discriminate in the name of religion and the need for strong federal, state and local non-discrimination protections.

This column does not necessarily reflect the opinion of the Bureau of National Affairs, Inc. or its owners.

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Author Info

Sruti Swaminathan is a lawyer at Lambda Legal where she defends the rights of LGBTQ + youth. Prior to Lambda, Swaminthan practiced in the litigation department of Willkie Farr & Gallagher LLP, where she spent much of her legal career supporting underserved populations, including LGBTQ + people and undocumented migrants.

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