John Roberts Punted on Religious ‘Freedom.’ Kids Are at Risk Because of It.

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Analysis Law and Policy

John Roberts Punted on Religious ‘Freedom.’ Kids Are at Risk Because of It.

Cathren Cohen

The recent Fulton v. City of Philadelphia ruling confirms the need for protections that prohibit LGBTQ discrimination and improve the child welfare policy.

The Supreme Court’s Fulton v. City of Philadelphia decision last week was the Court’s latest attempt to resolve conflicts between nondiscrimination protections and those who claim a religious objection to those policies. In other words: Can some folks have a license to discriminate?

The good news—for now—is the answer to that question is no. The decision was, effectively, a punt. The Court issued a unanimous but narrow and fact-specific ruling in favor of Catholic Social Services, which claimed its free exercise rights had been violated when the city of Philadelphia revoked a social services contract after learning CSS, an arm of the Archdiocese of Philadelphia, was refusing to place foster children in LGBTQ homes.

The bulk of the Court’s lengthy opinion focused on the proper legal standard to apply to these conflicts, with the majority ultimately declining to recognize a constitutional right to discriminate on the basis of religious beliefs. The fact that the Court’s religious freedom jurisprudence remains intact is crucial for the future protection of LGBTQ and reproductive rights against religious exemptions, but the Fulton decision is far from a win. Missing from the constitutional analysis and commentary is a discussion of the specific individuals caught in the middle of this cultural and policy debate: the foster youth who the child welfare system is meant to serve.

While caring for and placing foster youth is a government function (and youth in care are in government custody), the government has a long history of contracting with private, often faith-based organizations to perform some of the system’s functions.

As is the case in many states, the city of Philadelphia had contracted with private entities to screen and license potential foster families and placements for children, a process known as “child placing services.” The conflict arose when the city learned that several faith-based agencies, including CSS, refused to evaluate or license foster parents who didn’t to align with their religious beliefs, such as couples in same-sex relationships, unmarried people, and people of different faiths. The city warned the agencies that their contract wouldn’t be renewed because discriminating against potential foster parents violated both their contracts and the city’s nondiscrimination law. CSS sued the city rather than comply with the law (as other faith-based foster care agencies have chosen to do and thus maintained their contracts).

The effort to create religious exemptions to nondiscrimination rules that apply to the child welfare system is not new or specific to Fulton. Over the past two decades, 11 states have enacted laws that permit religious litmus tests to be applied to potential foster families; in 2019, the Trump administration granted a waiver from federal nondiscrimination laws to allow a child placing agency in South Carolina to continue using discriminatory criteria for foster families, which prompted lawsuits.

Decision-making in the child welfare system is supposed to be governed by the standard of what’s best for the child, but these policies that are essentially a license to discriminate harm the very foster youth the system is supposed to serve by putting the beliefs of private organizations before the needs of the children in the government’s care.

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Applying unnecessary and discriminatory litmus tests limits the number of homes available for foster youth. In the United States, around 440,000 youth are in foster care, and each year, around 20,000 young people “age out” of the system without being placed in a permanent home.

At a time when the need for foster families far outweighs the supply, these policies are turning away qualified and loving families simply because they are LGBTQ, unmarried, or believe in a different faith than the child placing agency. The loss of potential homes that results from rejecting same-sex couples alone is significant: Same-sex couples are seven times more likely than different-sex couples to foster or adopt. And worse yet, advocates for foster youth have collected stories of children who have spent years in care even when there were families interested in fostering them, simply because the placing agency would not consider a same-sex couple as a placement.

Further, these discriminatory policies put the specific young people who are disproportionately represented in the foster care system at risk of stigma and discrimination. LGBTQ youth are significantly overrepresented in the child welfare system. Recent studies indicate that 30 percent of young people in foster care identify as LGBTQ, compared with 11 percent in the general population. Family rejection of their identity is one of the top reasons why LGBTQ youth enter the child welfare system; once in the system, LGBTQ youth experience poorer outcomes, including longer time in care, more placements, higher rates of placement in group homes, and overt discrimination by those tasked with their care.

Ultimately, LGBTQ youth are more likely to age out without a permanent placement than their cisgender and heterosexual peers.

These young people also report high rates of mental illness and suicidality relative to their peers. According to a recent joint report from the National Institute for Health Care Management Foundation and the Trevor Project, LGBTQ youth in foster care were three times more likely to report a suicide attempt in the past year compared to LGBTQ youth who had not been in foster care. The child welfare system should be working to better serve these young people and address their mental health needs, not endorsing policies that send the stigmatizing message that LGBTQ people are not worthy of being parents.

In addition, discriminatory policies disregard the needs and rights of the diverse populations of foster youth by turning away families that could be the best fit for them. LGBTQ youth thrive when they are affirmed and supported in their identity, but under discriminatory policies, child placing agencies could screen out any families that would be LGBTQ-affirming. Similarly, if a young person’s own religious beliefs differ from their placing agency, and the agency only licenses families that share their beliefs, the child’s own religious rights could be disregarded and their ability to be placed with a family of their own faith could be blocked.

Rather than endorsing exemptions that allow taxpayer-funded entities to apply their religious beliefs to child placing services, the foster care system should be shaped by the needs of the children it serves. One way Congress can take action is by passing the John Lewis Every Child Deserves a Family Act, which would ban discriminatory policies that prevent foster youth from finding loving placements. The Supreme Court’s decision in Fulton v. City of Philadelphia confirmed the need for robust protections that prohibit discrimination and refocus child welfare policy on the young people it is meant to serve.