The Trump Justice Department filed a brief with the Supreme Court on the upcoming FULTON, ET AL. v. CITY OF PHILADELPHIA, ET support of plaintiffs and in opposition to the City of Philadelphia and that City’s ban on discrimination in children’s placement through their child welfare system. The brief offers little in terms of its impact on children and families and instead supports the argument that it is not about children but a case of religious discrimination.
In February 2020, the Supreme Court announced it would take up the case pursued by Catholic Charities of Philadelphia claiming the City of Philadelphia was engaged in religious discrimination when it pulled a child welfare contract because of the charity’s policy of not recognizing same-sex couples for placements involving foster and adoptive children even if appropriate.

In 2018 a report in the Philadelphia Inquirer had determined that some faith-based agencies were violating the non-discrimination requirements the City had in place when it came to the placement of children. Catholic Charities had not been initially covered in the reporting, but in a review of the child welfare agency’s practices, the City determined that the agencies were not in compliance with non-discrimination requirements and pulled their contract. Catholic Charities of Philadelphia said it was religious discrimination arguing they were entitled to enter into such contracts using the 2017 Supreme Court ruling, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in claiming that it too had been subjected to hostility based on anti-religious prejudice. The 2017 Supreme Court ruling dealt with whether a cake shop had to sell wedding cakes to same-sex couples. This court case will deal with the placement of children in foster care and adoptions from foster care.

A three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against the Catholic Charities agency. As part of that legal dispute, CWLA was part of an Amicus Brief along with Voice for Adoption, The North American Council on Adoptable Children, and the National Association of Social Workers in support of the City of Philadelphia. CWLA has also been an active supporter of the Every Child Deserves A Family Act (HR 3114, S. 1791) to ban discrimination in the placement of children and youth; and to ban discrimination in the recruitment of parents who want to adopt from foster care and parents who want to provide foster care.

In the earlier legal brief filed by the City of Philadelphia, “For many years, the City’s standard foster-care contracts have prohibited discrimination based on characteristics enumerated in the Philadelphia Fair Practices Ordinance, including race and sexual orientation. The City has never allowed contractors to turn away potential foster parents based on a protected characteristic. Although this longstanding policy applies to all City contractors—and although the City has long contracted with Catholic Social Services, and continues to do so for a range of other child-welfare services—CSS contends that the City’s decision to enforce this policy against it reflects religious hostility.”

Catholic Charities has argued, “The mayor, city council, Department of Human Services, and other city officials have targeted CSS and attempted to coerce it into changing its religious practices in order to make such endorsements. The City’s actions are a direct and open violation of the First Amendment. Yet the lower courts have upheld them.”

The best interests of a child mean finding a good match that requires an individualized assessment of the potential foster and adoptive parent(s) and foster children. This assessment involves matching the needs of the child with the strengths and capabilities of available foster and adoptive families. A ruling that frames the issue in terms of a fight over freedom of religion or freedom from religion in the politics of 2020 would all but reject the importance of children under “state custody,” our responsibility.

The Trump Administration argument includes a factual background section that leaves out details on how the original complaint by the City involved Bethany Christian Services and later Catholic Charities of Philadelphia. The City of Philadelphia was able to reach an agreement with Bethany Christian Services to continue fostering care and adoption services. After the agreement to resume services, representatives from that faith-based organization said, “Our faith calls us to work with vulnerable children and families and therefore, it is important that Christians remain in this space. To that end we will remain compliant with the law, we also remain committed to our Christian beliefs and core values.”

The Administration argues that “The City singled out religious organizations for investigation; suggested that religious beliefs are merely a pretext for discrimination; imposed unnecessarily severe restrictions on Catholic Social Services’ participation in the foster-care program;…”

Throughout CWLA’s 100 years, child welfare practices have changed and evolved. These changes have been for the better when they have been driven by what is in the best interests of children and families. That best interest is so paramount that Congress has written it into federal child welfare law nearly twenty times. In our 100-year history, reaching that best interest has always been dependent on the best efforts of our members. Since 1920 that membership has always included a combination of non-profit, faith-based, secular and public agencies across all regions and all parts of this country.

Despite our best efforts, we haven’t always gotten in right. Best practices have evolved and been informed by research, health care advances, brain science, and changes in our society, including changes in family structure and how we define families. Best interests of children has forced us to challenge practices that were standard by moving away from orphan trains, institutions, and orphanages, embracing the role of relatives and kinship care, turning away from clearly wrong policies such as separating Native American children from their families and communities and taking on the over-representation of children of color in the child welfare and child protection systems—something that has received added focus these past few weeks.

It is anticipated that the Supreme Court case will be taken up in the fall as part of the next session of the Court. Much of the decision may be driven by how much the Court views this as a political issue and how much weight is given to the importance of the more than 690,000 children and youth who will spend at least part of their lives in foster care this year.

Texas Attorney General Ken Paxton filed on behalf of that state and the states of Alabama, Arkansas, Kentucky, Louisiana, Missouri, Nebraska, Ohio, Oklahoma, and West Virginia in alignment with the Trump Administration position. Attorney General Paxton has added to his growing list of conservative briefs, including his opposition to the Affordable Care Act (ACA) and the Indian Child Welfare Act (ICWA).

The Child Welfare League of America will be weighing in again.