Numerous LGBTQ advocacy and youth organizations have just filed “friend of the court” briefs in the first appeals court case that will decide whether taxpayer-funded child service agencies may cite their religious beliefs to discriminate against prospective foster parents and youth in care.
The case, in the U.S. Court of Appeals for the Third Circuit, is an appeal from a July decision by the U.S. District Court of the Eastern District of Pennsylvania, which said that Catholic Social Services (CSS), a foster care and adoption agency that receives taxpayer funds, did not have the right to refuse to license otherwise qualified same-sex couples to be foster or adoptive parents. (Here’s more background on the case.)
In one “friend of the court” brief, Family Equality Council and COLAGE use the experiences of real prospective parents to argue that:
- Allowing foster care agencies to discriminate against same-sex couples limits the number of available homes
- Discrimination against same-sex couples deters and prevents them from fostering
- Discrimination against same-sex couples delays families from fostering
- Same-sex couples provide positive foster homes and nondiscrimination policies cultivate an inclusive and welcoming environment for them to foster
- Discriminating against prospective foster parents based on sexual orientation denies foster children loving and affirming homes
- Children who cannot remain with their families need supportive family foster homes
- Children need a diverse pool of foster parents
Here’s just one example drawn from the brief (my bold):
Samantha Hutcherson Bannon and her wife, an emergency medicine doctor, were “interested in fostering a refugee child” but abandoned their efforts in the face of discrimination. They attended an event held by Bethany Christian Services (BCS) near Philadelphia. However, when Samantha “shared with the staff that we are two-mom family . . . the 3 staff members present were clearly uncomfortable with the information.” Two staff members “immediately left the room,” and the third advised that BCS had “never worked with a same-sex family before” and offered “information about organizations in the area that worked with families like ours to become foster parents.” When Samantha explained that they were “specifically interested in fostering a refugee child and, as she knew, there were limited organizations that handled these placements,” the staff member responded “that refugee children ‘had already been through enough’ and wouldn’t be the best fit for placement in our family.” The impact of this discrimination and dignitary harm led Samantha and her wife to relinquish their attempt to foster.
In a separate brief, submitted by Lambda Legal on behalf of itself and nine local, state, and national organizations that serve LGBTQ youth: FosterClub, Garden State Equality, the Gender and Sexuality Development Clinic of the Children’s Hospital of Philadelphia, the Human Rights Campaign, the Mazzoni Center, the National LGBTQ Task Force, Pennsylvania Youth Congress Foundation, The Trevor Project, and True Colors Fund. They argue that:
Among the people most critically affected by Catholic Social Services’ (“CSS”) exclusion of same-sex couples from the public child welfare services it provides pursuant to a contract with the City of Philadelphia (“the City” or “Philadelphia”) are the estimated 1,100 LGBTQ youth in the City’s foster care system….
Requiring nondiscrimination in foster care services is consistent with and, in fact, mandated by the City’s legal obligation to ensure the wellbeing of all youth in its child welfare system, including LGBTQ youth…. Ordering the City to permit contracted foster care agencies to exclude same-sex couples as prospective foster parents would actively harm LGBTQ youth in the foster care system in multiple ways.
They enumerate the ways (my bold):
First, allowing CSS to discriminate against LGBTQ people would send a government-endorsed stigmatic message to LGBTQ youth that, because of their identity, they are not deserving of dignity and equal protection under the law. LGBTQ youth would get the message that the City permits discrimination against people like them, and those LGBTQ youth specifically in the care of an agency that excludes same-sex couples would get the damaging message that the agency responsible for their care and support would not consider them to be acceptable parents when they grow up. Second, by excluding same-sex couples from eligibility as foster parents, the pool of LGBTQ-affirming placements that may best serve LGBTQ youth would be diminished. These harms are inconsistent with the City’s obligation to ensure the wellbeing of children in foster care, and this Court should not allow the interests of agencies that would discriminate against LGBTQ people to be elevated over the best interests of these children — the paramount consideration in the child welfare system.
This is an important case. The District Court ruling was the first time a federal court said that government-contracted child welfare agencies do not have a right to exclude same-sex couples or others from fostering children if they (the prospective parents) don’t fit an agency’s religious beliefs, according to the ACLU. Since 10 states have now implemented “religious exemption” laws that allow child care agencies to discriminate against LGBTQ people and others in adoption and foster care, deciding the constitutionality (or not) of such laws will be key to whether they spread. The more than 400,000 children in foster care in the U.S. need advocates like those of the organizations above.
