On Monday, February 24, 2020, the Supreme Court announced it will take up a 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 had 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.

According to the 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.

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 policies that were clearly wrong 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.

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.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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