Ask the Experts: Freedom of Religion or the Right for Foster Kids to Join Safe, Loving Families or Both?

Earlier this year, the Supreme Court issued its decision in a case called Fulton v. City of Philadelphia. It was a highly contested argument about whether private agencies that receive taxpayer funding to provide services for foster care providers with religious missions could reject same-sex couples as potential foster parents. There are so many issues involved: freedom of religion and association, the rights of children in the system to a stable, loving home and whether government funding can be used in a selective or discriminatory manner given that taxpayers of various beliefs are involved.

Over 1,000 people filed amicus briefs in support of the city of Philadelphia, which had informed two religious agencies that they would no longer place children in need with them because they were not accepting same-sex couples as foster parents. At the end of the day, the Supreme Court ruled against the city.

Here to explain why they think the outcome was the right one are Montserrat Alvarado, whose public interest law firm, The Becket Fund for Religious Liberty, appeared as counsel for the plaintiffs, and Darcy Olsen, founder and CEO of Gen Justice. As you’ll read, their reasons for opposing the city’s actions are very different: Alvarado approaches this from a freedom of religion perspective, and Olsen from the rights of a child to be placed in a good home while in the foster care system.

Question: Why do you think the outcome of the Fulton case is a win for children in the foster care system? 

Montserrat Alvarado: The unanimous outcome in the Fulton case is an important win for all Americans. That unanimity is important here because it is a clear sign that people of faith who want to join in the fight to end our nation’s foster care crisis are not just welcome to do so but are protected by the Constitution. The government can no longer force religious ministries to surrender their rights in order to serve those in need in our community. 

It’s a great victory for children who love the agency and case workers who have helped them find forever homes. It’s also an important warning to state and local legislatures that planned to change their contracts to exclude religious groups. And it’s a critical reminder that religious agencies like Catholic Social Services have, in the Court’s opinion, “long been a point of light in the city’s foster-care system.” The ability to keep these agencies open creates more options for children and brings in, and helps retain, foster parents. 

Darcy Olsen: The number of abandoned and abused American children who need safe homes vastly outpaces the number of families who are willing to take them in. As Justice Alito noted in his concurring opinion, “There is an acute shortage of foster parents, both in Philadelphia and in the country at large.” If the Court had ruled against religious foster care agencies, it would have allowed the government to eliminate one of the largest providers of foster and adoptive families in the country. 

As Gen Justice argued in its amicus brief, the critical issue from the perspective of an abandoned child was that child’s profound interest in being able to join a safe and loving family, also known as the right to family association. Unfortunately, the Supreme Court declined to explicitly recognize that children possess such a constitutionally protected interest in its written opinion. But the Court’s judgment does protect the children’s interests in forming new familial bonds, even if not explicitly.

Question: What was the main argument on the other side, and why do you think that position would have been detrimental for children in the system?

Montserrat Alvarado: One of the major arguments from the other side has been that government interest in equality, or in preventing “dignitary harm” to individuals, can trump religious freedom rights. The Court unanimously rejected that argument, reasoning instead that Catholic Social Services was entitled to protection, and refusing to make the conflict a zero-sum game in which religious interests must lose. Instead, the Court was clear that “CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else.”

Another point the other side liked to make was that the city’s main goal was maximizing the number of foster parents able to help. How would shutting down one of the most successful agencies in the city achieve that goal? It wouldn’t. And this outcome would have been tragic for children, even more so now, when the COVID-19 crisis has only increased the number of children in need of foster homes.

The Supreme Court confirmed that the other side’s reasoning forces a false choice, pushing great families out of foster care and thereby preventing some children in need from finding a loving home.

Darcy Olsen: The city of Philadelphia litigated the case as a First Amendment issue, full stop. Equally at issue in our view was the constitutional interest children have in forming families. Government policy must respect that right as much as its policies must respect the right to religious freedom. In practical terms, this means that Philadelphia’s attempt to exclude faith-based organizations from its programs would have violated the rights of children to seek families by categorically eliminating hundreds of thousands of families as potential foster or adoptive homes.

Question: Which new opportunities does this Supreme Court decision create for placing more foster kids in much-needed, good and stable homes?

Montserrat Alvarado: Foster families and faith-affirming agencies previously sidelined by discriminatory policies now have the Supreme Court’s blessing to serve children in need without abandoning the religious faith that motivates their service. Since 2006, faith-affirming agencies in San Francisco, Boston, the District of Columbia, Illinois and New York have closed down — bullied by government officials into either abandoning their religious beliefs or losing their license. But since 2018, many faith-affirming foster agencies, including several in Michigan, Pennsylvania, South Carolina and Texas, are fighting to keep serving kids and families in need, and their conviction just won at the Supreme Court. 

What does this mean? Nationwide, there are over 8,000 religious foster and adoption agencies. Catholic Charities alone serves over 10,000 kids every year. This Supreme Court decision protects them and provides a path for those agencies that were shut down almost 15 years ago to reopen and again serve over 400,000 children who need their help. 

We can maximize the number of homes for foster children by creating more foster care opportunities for more families, as the Supreme Court’s decision acknowledged. This can be done by protecting the rich diversity in our foster care system, a system in which Catholic agencies can serve alongside Jewish agencies, LGBTQ-affirming agencies and agencies that specialize in serving the Latino and Black communities.

The evidence bears this out: faith-affirming agencies bring something unique to the table. They are experts in recruiting families from within their faith traditions, and many specialize in finding homes for marginalized or often-overlooked children, like those with special needs. This unique niche, filled by agencies like Catholic Social Services, could have disappeared if the government had succeeded in shutting faith-affirming agencies out of the foster care system because of their religious beliefs and practices.

Darcy Olsen: First and foremost, the Fulton decision creates opportunities to challenge government rules, regulations and barriers limiting the number of potential foster and adoptive families available to children. For over a decade, local and state governments have been erecting barriers to fence out faith-based organizations from their foster care systems. As Justice Alito noted in his concurring opinion, “From 2006 to 2011, Catholic Charities in Boston, San Francisco, Washington, D.C., and Illinois ceased providing adoption or foster care services after the city or state government insisted that they serve same-sex couples.” While such barriers will continue to be challenged on religious freedom grounds, advocates also should pursue arguments that will recognize and protect the rights of children. 

The U.S. Supreme Court recognizes that adults possess fundamental and protectable constitutional rights, such as the right to marry and the right to have children. The Court must squarely address the issue of whether parentless children have a similar constitutionally protected interest in finding and forming families. When the Supreme Court finally acknowledges that children are protected by the federal Constitution, policies that hinder, harm or impede prospects for adoption will need to be eliminated by state legislatures or struck down by courts.

**Philanthropy Roundtable supports the work of philanthropists seeking to advance liberty, opportunity and personal responsibility in order to strengthen our free society. Pathways to opportunity and strong communities are an important part of our work, including helping vulnerable populations such as foster children, so people in our society can reach their full potential.

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