Supreme Court Agrees to Hear Case Involving Taxpayer-Funded Discrimination in the Child Welfare System

Supreme Court Could Allow Agencies to Turn Away Prospective Foster Parents who are LGBTQ or a Religious Minority

February 24, 2020 11:00 am

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WASHINGTON — The Supreme Court today agreed to hear Fulton v. City of Philadelphia, a case about whether or not taxpayer-funded foster care agencies have a constitutional right to discriminate based on the agency’s religious requirements.

Catholic Social Services (CSS) sued Philadelphia for the right to discriminate against prospective foster families headed by same-sex couples. The Support Center for Child Advocates and Philadelphia Family Pride, represented by the American Civil Liberties Union and the ACLU of Pennsylvania, intervened in the lawsuit. Both the district court and the Third Circuit Court of Appeals rejected CSS’ claims, saying instead that Philadelphia can require agencies that accept tax dollars to provide foster care services for children to accept all qualified families.

Taxpayer-funded foster care agencies in a number of states, such as South Carolina, have asserted a religious objection to accepting families of different faiths, families that do not attend church, same-sex couples, or unmarried people.

Leslie Cooper, deputy director of the ACLU LGBT & HIV Project, had the following response:

“This case could have profound consequences for the more than 400,000 children in foster care across the country. We already have a severe shortage of foster families willing and able to open their hearts and homes to these children. Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse. We can’t afford to have loving families turned away or deterred by the risk of discrimination.

“When agencies choose to accept taxpayer dollars to provide this critically important government service to children, the needs of children must come first.”

Like many jurisdictions, Philadelphia contracts with private agencies to provide services to children in the city’s foster care system. The city’s contracts with these agencies include a nondiscrimination provision, which ensures that prospective foster families will not be excluded based on their race, religion, sexual orientation and other characteristics unrelated to the ability to care for a child. Many other states and cities across the country have similar contract requirements. CSS is unwilling to comply with Philadelphia’s non-discrimination requirement because it has a religious objection to same-sex couples. When the city informed CSS that it would not renew its contract unless it is willing to comply with its requirements, CSS sued Philadelphia, claiming that the constitution gives it the right to provide this service to children in the city’s custody — and get paid taxpayer dollars — while at the same time, disregard the city’s requirement that it accept all qualified families.

For a detailed analysis of the arguments in this case:

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