SCOTUS’ opportunity to protect religious child welfare agencies

Written by William C. Duncan

October 16, 2020

On November 4, the U.S. Supreme Court will hear oral arguments in the first religious freedom case of its current term (the Court’s terms run from the fall of one year until the spring of the next). As in most religious freedom cases, long-lasting solutions and genuine resolution of the issues will not come from the courts, but through thoughtful deliberation and principled compromise among elected bodies. That said, in this particular Supreme Court case – Fulton v. City of Philadelphia – it would be helpful if the Court’s ruling offered guidance for lower-court consideration of similar cases.

The case involves two foster parents, Sharonell Fulton and Toni Simms-Busch. The Becket Fund for Religious Liberty that is representing the parents notes that between the two, “they have welcomed more than 45 foster kids into their loving homes—the majority of whom came from disadvantaged communities and experienced severe trauma.” These women are both Catholic and have partnered with Catholic Social Services (CSS) to provide foster care.

Consistent with their religious mission, CSS cannot endorse unmarried or same-sex couples as foster parents, choosing instead to refer these couples to other agencies. As a result, the City of Philadelphia stopped placing with families that partner with CSS in March 2018.

Fulton and Simms-Busch are asking the Supreme Court to reverse the city’s policy as unconstitutional discrimination against religious child welfare providers.

The importance of this case is underscored by two other religious freedom cases pending in lower federal courts which also arise in the context of child welfare.

New Hope Family Services

For instance, earlier this month, a federal court in northern New York issued a decision in New Hope Family Services v. Poole. New Hope is a Christian ministry in New York that was authorized by the state to place children for adoption. Because of their beliefs, the agency declined to place children with unmarried or same-sex couples, instead referring these couples to other agencies.

New York administrative regulations prohibit discrimination on the basis of sexual orientation and, in a review of the agency’s policies, a representative of New York’s Office of Child and Family Services (OCFS) told New Hope that its policy violated this regulation. OCFS told the agency it intended to shut down New Hope.

In ruling on New Hope’s lawsuit, the court determined the OCFS decision was likely motivated by hostility to the religious beliefs of the agency. The court said that “by attempting to force New Hope to say that it is in a child’s best interests to be placed with an unmarried or same sex couple, despite New Hope’s sincere disagreement with that statement, OCFS is attempting to compel speech.” The court rejected the Office’s argument that New Hope need not endorse this message because it could opt to close. The court responded, “closure is surely a harsh alternative for New Hope.”

James and Gail Blais

Another case from Washington State, Blais v. Hunter, involves great-grandparents, James and Gail Blais, of an infant who had been removed from her biological parents in Idaho. Idaho sought to place the child with the great-grandparents who are devout Seventh-day Adventists. Since the couple lived in Washington, the Idaho agency asked Washington’s Department of Child and Family Services to evaluate whether the Blaises could be foster parents.

During a home study, the Department asked the couple “a series of hypotheticals involving a foster child who might in the future develop or identify as LGBTQ+.” The Blaises promised to support and provide appropriate care for the child but would do so consistent with their religious beliefs. The case worker examining felt “their responses conflicted with the Department’s policy to support LGBTQ+ children.” The couple were not approved and sought court resolution of the conflict

A federal judge in the eastern district of Washington concluded “that, in practice, [the Department’s rules] work to burden potential caregivers with sincere religious beliefs yet almost no others” since “the only foster care applicants who might object to supporting certain issues LGBTQ+ children might face will likely do so on religious grounds.” This meant “to be eligible for a foster care license, the Department required the Blaises to divorce themselves from their religious beliefs.”

Although the fact scenarios in all three cases are different, there are important guidelines the Supreme Court could establish in the Fulton case that could guide courts dealing with these types of conflicts in the future. For instance, what role do state agencies have in determining what religious influence foster or adoptive parents can have on children entrusted to their care? Can religious caregivers be excluded from providing child welfare assistance if their views about sexual morality are at odds with current government priorities? Is it a sufficient protection of the ability of those who object to religious standards in placement to have access to referrals to other agencies or must they be accommodated by every child welfare provider?

The Court should continue the path it has been following in other religious freedom cases and allow different visions of child welfare, religious and secular, to coexist when basic standards of safety are met by the alternatives. Courts cannot do everything though. So, legislatures should establish ways to decrease conflict between people and organizations of faith and those who disagree with their religious beliefs about sexual morality.

This two-prong approach will ensure that care for children is prioritized over ideological disagreements. It will further guarantee more rather than fewer capable and caring participants in the child welfare system. Whatever our political or legal philosophy, everyone should agree that prioritizing the welfare of children and families ought to be one of the main goals of our foster care and adoption system.

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