The Supreme Court ruled today that a taxpayer-funded child welfare agency in Philadelphia can continue its discriminatory policy of refusing to place children in the care of prospective LGBTQ foster parents.
The case, Fulton v. City of Philadelphia, concerned whether the City of Brotherly Love could be allowed to enforce a policy prohibiting anti-LGTBQ discrimination in a contract with Catholic Social Services (CSS) — a private, religious foster care agency. In 2018, the city stopped paying the agency to place children in private homes after learning CSS refused to work with prospective LGBTQ foster parents — a breach of Philadelphia's anti-discrimination policy.
That any agency would actively work to limit the number of available, loving and competent homes for our country's more than 400,000 foster youth is, of course, appalling. But this is particularly true given that so many of our nation's foster youth themselves identify as LGBTQ — including a third of all foster youth in New York City.
During a recent webinar we hosted here at GWK on adopting older youth through foster care, we learned about the real-world impacts of limiting homes that are inclusive and affirming. Natalie Clark, a former foster youth and current leader of FosterClub, told us that when she was 14 years old, she was already living her life as an out-and-proud lesbian. The first foster family she was placed with in Salt Lake City, Utah, however, was not accepting of her sexuality — and returned her to the system. Throughout the rest of her teenage years in foster care, Natalie lived her life closeted, afraid of being rejected again.
After oral arguments last fall, most legal observers didn't expect the Supreme Court's ruling, with it's newly minted 6-3 conservative majority, to go our way. So the outcome, while disappointing, is not altogether surprising. And some may wonder why it might matter so much, anyway — after all, there are plenty of other agencies in Philadelphia that will work with LGBTQ foster parents.
This was a similar argument raised by several of the conservative justices during oral arguments, who pointed out that no same-sex couple had sought to work with CSS in the past, and that if they had approached the agency, they would have simply referred them to another that is willing to work with LGBTQ people.
However, this nonetheless amounts to a form of second-class citizenry, stigmatizing the LGBTQ community as unsuitable parents — something we know through research and our own lived experiences to be patently false. And if it becomes legal to discriminate against LGBTQ people in this instance, on the grounds of "religious freedom," where does the line stop? Will private food banks and homeless shelters, supported by tax dollars, also be allowed to turn queer people away, citing religious objections? It's a slippery slope, and one the court's new conservative majority may be eager to push us down.
I also don't want to overstate the importance of today's case, as it was a narrow ruling. The Supreme Court today did not issue a sweeping decision that extends beyond the specifics of this single case — meaning local government bodies can still enact policies that prohibit discrimination against LGBTQ people. That the case was unanimous, including all three liberal justices, is in some ways disturbing — but it can also be interpreted that they joined this decision to avoid one with implications that would have been further reaching.
“While today may have been a loss for the City of Philadelphia, it was a victory for the principle that nondiscrimination protections that our families depend upon are valid and enforceable when properly implemented,” said Family Equality’s CEO, Stacey Stevenson, in a press statement. “Today’s decision once again affirms that state and local governments can maintain laws that protect everyone—including LGBTQ+ youth, families, and prospective parents—from discrimination in government services.”
The outcome in this case is an important reminder of the discrimination that prospective LGBTQ foster and adoptive parents continue to face around the country — and why we must continue to advocate for legislation like the John Lewis Every Child Deserves a Family Act, introduced by Senator Kirsten Gillibrand and Representative Danny Davis, which would prohibit anti-LGBTQ discrimination within our country's child welfare system.
Let's take a moment to mourn the direction our current Supreme Court seems to be taking. But let's also take this as the kick in the butt our community may have needed to ramp up our organizing and advocacy efforts for LGBTQ families and youth. On this front, look out for more information from us in the coming week on ways you can get involved.