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According to the Office of the Administration for Children & Families, in 2018 there were approximately 437,283 children in foster care. While about a third of those children were placed in the home of a relative, nearly half were in nonrelative foster family homes. While 43% of the children who were in foster care in 2018 were in the system for less than a year, only about half of the children in the foster care system have a case goal of reunification with their parents. More children entered foster care during the 2018 fiscal year than exited it.

Children in foster care can live in a variety of different environments. For fiscal year 2018, 46% were in nonrelative foster family homes, 32% were in homes with relatives, 6% were in institutions, 5% were on trial home visits (where the child returns home on a trial basis, supervised by the State), 4% were placed in group homes, 4% were placed in pre-adoptive homes, 2% were living independently with supervision, and 1% had run away.

With over 400,000 children in foster care, demand for foster parents is always high. Approximately 30,000 foster children “age out” of the foster care system each year without reuniting with their families or being adopted. This has serious consequences, as these children often have no savings or job prospects when they turn 18 and are released into the world. Finding an adoptive family, or a “forever home” before graduating high school is very important for foster children who, for whatever reason, cannot reunify with their parents.

In Philadelphia, an organization called Catholic Social Services was contracted with the City to place foster children in foster homes. Their contract was frozen by the City, however, after the City learned that the agency was refusing to place foster children with same-sex couples, which they claim is in violation of Philadelphia’s nondiscrimination ordinance.

Catholic Social Services then sued the City, claiming its religious freedom had been violated. A U.S. District Court Judge found that the city could require foster care agencies to adhere to nondiscrimination policies. The district court found that Philadelphia’s Department of Human Services had a legitimate interest in ensuring “that the pool of foster parents and resource caregivers is as diverse and broad as the children in need of foster parents.” The case then went up to the U.S. Court of Appeals for the Third Circuit, which affirmed the district court’s decision.

The case is now set to be decided by the United States Supreme Court, and many organizations have filed amicus curiae briefs. One of those organizations was an interfaith coalition of more than 400 different faith leaders, including Rabbis, Episcopal priests, members of the Church of Christ, Unitarians, Presbyterian and Methodist ministers, Imams, and even Quakers. These religious leaders argued that there is a “false dichotomy between LGBT equality and the free exercise of religion” and that they believed Philadelphia has a “compelling interest in preventing discrimination based on sexual orientation.” They stated that permitting the agency to exclude same-sex couples from fostering children “directly undermines this compelling interest and causes the very injury the antidiscrimination obligations in Philadelphia’s contracts are designed to prevent.”

The American Bar Association also filed a brief in support of the City. The ABA stated that the City nondiscrimination policy serves two important goals for Philadelphia. First, they argue, the policy “ensures that the foster children in its care, particularly those from more vulnerable populations, have the best chance of finding suitable and loving homes.” Second, the policy helps the City “avoid[] exposing same-sex couples to the harms associated with unequal treatment in City programs carried out with City funds.”

The ABA also pointed out that the State of Pennsylvania, like all other states, “has an obligation to act in the best interests of the children in its custody,” and that the ordinance helps to fulfill this obligation by placing more children in more homes. The ABA cited studies to show that same-sex couples display no statistically significant differences as to parenting skills, attitudes, or emotional health than different-sex couples. They also mention that LGBTQ+ youth are disproportionately more likely to be in the foster care system, and that not allowing placement with same-sex couples could have an impact on these children.

The ABA also cited to previous case law. They argued that the City was not violating the agency’s – or any other organization that contracts with the City’s – First Amendment rights because the agency was voluntarily contracting to perform a governmental function pursuant to a contract. The ABA cited case law in which the U.S. Supreme Court held that the “Government can, without violating the Constitution, selectively fund a program, to encourage certain activities it believes to be in the public interest.”

Finally, the ABA argued that if Catholic Social Services were granted the power to exempt themselves from a City policy, “that power would be equally available to all.” They argued that if “individuals are permitted to self-exempt from the law’s general requirements on the basis of religious principle, legal protections against religious or any other form of discrimination would become empty.” They pointed out that this could lead to individuals being able to “claim a right to discriminate against those of other faiths, including the very persons” involved in the case.

On the other side, the Archdiocese of Philadelphia is arguing that Philadelphia is violating the church’s constitutional right to religious freedom due to the Church’s “stance against same-sex marriage.” The agency also claimed it had not ever been approached by a same-sex couple looking to foster a child anyway. An amici curiae brief was filed by the Catholic Association Foundation in support of the agency. In that brief, they quoted foster children and foster parents who went through the agency for placement. They also argued that the agency provided prospective foster parents who are also religious with “encouragement and assistance of people who speak their language, share their values, and understand their worldview.”

So far, over 80 amicus curiae briefs have been filed into this case, and the outcome of it is expected to have serious ramifications for governmental entities, if the City loses, or religious organizations that contract with the government if the City is successful. The United States Supreme Court is set to hear oral arguments for this case on November 4, 2020.

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