Children and Youth Law Clinic Files Supreme Court Brief on Foster Care Case

Miami Law’s Children and Youth Law Clinic signed on to the amicus brief in Fulton v. City of Philadelphia, a case to be argued in front of the Supreme Court of the United States this fall.

The case centers on Catholic Social Services, a child welfare agency that has sued the City of Philadelphia to receive taxpayer dollars for its child welfare services, despite the agency’s refusal to comply with the city’s nondiscrimination requirement. The brief is filed on behalf of the nation’s children who will be profoundly and irreparably harmed if the court adopts the position that CSS and other government-contracted foster care agencies have a constitutional right to refuse prospective families based solely on religious objections.

“The Children & Youth Law Clinic is honored to be a partner with Children’s Rights and Greenberg Traurig, and the other child welfare advocates and faith leaders, in this impressive amicus brief,” said Bernard Perlmutter, co-director of the clinic. “Many CYLC clients are LGBTQ children who experience serious difficulties in foster care, and a significant focus of our policy advocacy is improving outcomes for these children while in foster care and after their exit from care. Permitting taxpayer-funded private religious agencies to discriminate against LGBTQ foster and adoptive parents would visit great harm on all of the children we represent and ill serve their needs and best interests.”

The brief was joined by 32 child advocate organizations from across the country and a number of members of the Interfaith Coalition for Children’s Rights which seeks to oppose legislation and policy changes that would enshrine a “license to discriminate” into law.

In Fulton v. City of Philadelphia, SCOTUS will consider whether foster care agencies who contract with the government to perform an essential government function in exchange for tax-payer funds have a constitutional right to refuse prospective families based solely on religious objections to those families. If the Court rules in favor of CSS, it is children in the child welfare system who will ultimately pay the price.

“We speak on behalf of thousands of children across the country who go to sleep at night yearning for safe and loving homes. We respect and value the role that faith-based agencies play in providing both placement and services for children in foster care across the country. Our concern is with government-sanctioned discrimination of any kind. The lower courts correctly held that the City of Philadelphia’s anti-discrimination regulation applies to all taxpayer-funded child welfare agencies to ensure that the pool of foster parents and resource caregivers is as diverse and broad as the foster children they serve,” said Christina Wilson Remlin, lead counsel at Children’s Rights. “We urge the Supreme Court to put children first and uphold Philadelphia’s non-discrimination policy. The only litmus test for these caregivers should be love and safety.”

Accepting CSS’s claim that government-contracted foster care agencies have a constitutional right to discriminate against qualified families that do not meet the agency’s individual religious standards will hurt children in foster care by unnecessarily reducing the number of safe, stable placements available to them. It would also invite challenges by faith-based government contractors to a wide variety of government laws and policies protecting families and children from discrimination in the provision of government services.

Requiring that the City of Philadelphia contractually allow child welfare agencies to discriminate based on sexual orientation would also send a harmful message to vulnerable children in foster care—as well as to potential LGBTQ foster parents—that the city will not protect them from discrimination. And it would harm LGBTQ youth—a demographic disproportionately represented in the foster care system—by telling them that people like them are not worthy of protection.

America already has a shortage of available families to care for children entering the foster care system. Narrowing the number of qualified and loving parents based on non-merit factors would cause thousands of children to languish in foster care and institutional placements where their needs often go unmet and where they are more likely to experience trauma and abuse.