Amicus Curiae Brief — Sharonell Fulton, et al., Petitioners v. City of Philadelphia, Pennsylvania, et al.
Supreme Court briefAug 26, 2019
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No. 19-123
IN THE
Supreme Court of the United States
_______________________
SHARONELL FULTON, ET AL.,
Petitioners,
v.
CITY OF PHILADELPHIA, ET AL.,
Respondents.
_______________________
On a Petition for a Writ of Certiorari to the United
States Court of Appeals for the Third Circuit
_______________________
Brief of 44 United States Senators and
Members of the House of Representatives
as amici curiae in support of Petitioners
_______________________
MILES E. COLEMAN, Counsel of Record
Nelson Mullins Riley & Scarborough, LLP
miles.coleman@nelsonmullins.com
1320 Main Street, 17th Floor
Columbia, SC 29201
(803) 799-2000
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ............................................... ii
INTEREST OF AMICI CURIAE......................................... 1
SUMMARY OF THE ARGUMENT ..................................... 2
ARGUMENT .................................................................. 4
I.
There is a long, unbroken, and nationwide
history of faith-based providers caring for
children in need as an exercise of, and in
keeping with, their religious beliefs ................. 4
II. Government partnership with religious
social services providers is a permissible,
feasible, and historically common practice ..... 10
A. Government accommodation of and
contracting with religious entities is
historically common ................................. 11
B. Government accommodation of faithbased providers remains feasible and
permissible ............................................... 13
III. Children in need of loving homes are best
served by State accommodation of religious
providers and parents and the resulting
increase in the number of available homes ..... 16
CONCLUSION ............................................................. 19
APPENDIX—COMPLETE LIST OF AMICI CURIAE ......... 1a
ii
TABLE OF AUTHORITIES
Cases................................................................ Page(s)
Bd. of Educ. of Kiryas Joel Village Sch. Dist.
v. Grumet, 512 U.S. 687 (1994)
(O’Connor, J., concurring) ................................... 16
Bowen v. Kendrick,
487 U.S. 589 (1988) ............................................. 13
Bradfield v. Roberts,
175 U.S. 291 (1899) ............................................. 11
Christian Legal Society v. Walker,
453 F.3d 853 (7th Cir. 2006) ............................... 16
Hall v. Smith,
497 Fed. App’x 366 (5th Cir. 2012) ..................... 14
Hartmann v. Stone,
68 F.3d 973 (6th Cir. 1995) ................................. 15
Ismail v. Cnty. of Orange,
693 Fed. App’x 507 (9th Cir. 2017) ..................... 14
Leshko v. Servis,
423 F.3d 337 (3d Cir. 2005) ........................... 14, 15
Letisha A. v. Morgan,
855 F. Supp. 943 (N.D. Ill. 1994) ........................ 14
M.F. v. Perry Cnty. Children & Family
Servs., 725 Fed. App’x 400 (6th Cir. 2018) ........... 6
iii
Maddonna v. U.S. Dep’t of Health & Human
Servs., No. 19-00448 (D.S.C. Feb. 15, 2018) ....... 11
Malachowski v. City of Keene,
787 F.2d 704 (1st Cir. 1986) .......................... 14, 15
Marouf v. Azar,
No. 18-cv-00378 (D.D.C. Feb. 20, 2018) .............. 11
Marr v. Schofield,
307 F. Supp. 2d 130 (D. Me. 2004) ...................... 15
Midrash Sephardi, Inc. v. Town of Surfside,
366 F.3d 1214 (11th Cir. 2004) ........................... 16
Milburn v. Anne Arundel Cty. Dep’t of Soc.
Servs., 871 F.2d 474 (4th Cir. 1989) ............. 14, 15
Obergefell v. Hodges,
135 S. Ct. 2584 (2015) ........................................... 3
P.G. v. Ramsey Cnty.,
141 F. Supp. 2d 1220 (D. Minn. 2001) ................ 14
Pfoltzer v. Cnty. of Fairfax,
775 F. Supp. 874 (E.D. Va. 1991) ........................ 14
Rayburn v. Hogue,
241 F.3d 1341 (11th Cir. 2001) ........................... 14
Rendell-Baker v. Kohn,
457 U.S. 830 (1982) ............................................. 15
iv
Rogers v. U.S. Dep’t of Health & Human
Servs., No. 19-01567 (D.S.C. May 30, 2019) ....... 11
Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012 (June 26, 2017).......... 5, 15
Constitutional Provisions
Amend. I ............................................................. passim
Other Authorities
Angela Davis, Church, group homes get
innovative to address foster care needs,
Greenville Online (March 25, 2017) ..................... 5
Apology of Aristides the Philosopher 15
(c. A.D. 125) ........................................................... 9
Benjamin Hardy, In Arkansas, One Faith-Based
Group Recruits Almost Half of Foster Homes,
The Chronicles of Social Change (Nov. 28,
2017) ....................................................................... 7
City of Philadelphia Dept. of Human Servs.,
Foster Care Licensing Agencies (contracted
by Philadelphia DHS) .......................................... 18
Douglas Laycock, Religious Liberty and the
Culture Wars, 2014 U. ILL. L. REV. 839 (2014) ..... 3
Deuteronomy 10:18 ..................................................... 8
v
Edward Queen, History, Hysteria, and Hype:
Government Contracting with Faith-Based
Social Service Agencies, Religions 2017 .......... 11, 12
GEORGE WHITEFIELD’S JOURNALS (Iain
Murray, ed., London 1960) .................................... 5
Gov. Henry McMaster’s Exec. Order No.
2018-12 (Mar. 13, 2018) ...................................... 13
James 1:27................................................................... 9
Letter from Texas Atty. Gen. Ken Paxton to
U.S. Dept. of Health & Human Servs.
(December 17, 2018) ............................................. 13
Maggie Jones, God Called Them to Adopt.
And Adopt. And Adopt., The New York
Times Magazine (Nov. 14, 2013) .................. 7, 8, 18
Matthew 18:5–10 ......................................................... 9
Mark 10:14–16 ............................................................ 9
Michael Howell-Moroney, On the Effectiveness
of Faith-Based Partnerships in Recruitment
of Foster and Adoptive Parents, J. OF PUB.
MANAGEMENT & SOCIAL POLICY, No. 19,
Vol. 2 (2013) ..................................................... 7, 18
Pew Research Center, The Future of World
Religions: Population Growth Projections,
2010-2050, Demographic Study (April 2, 2015) ...... 8
vi
Polycarp, Philippians 6.1 ........................................... 9
Sarah Torre and Ryan T. Anderson,
Protecting the Religious Liberty of
Adoption and Foster Care Providers
(Witherspoon Institute, August 1, 2014) .............. 6
Shamber Flore, My Adoption Saved Me, The
Detroit News (March 7, 2018) ............................... 8
Susan V. Mangold, Protection, Privatization,
and Profit in the Foster Care System, 60
OHIO ST. L.J. 1295, 1298 (1999) ............................ 5
Timothy Miller, The Orphans of Byzantium:
Child Welfare in the Christian Empire (2003) ..... 9
U.S. Dept. of Health & Human Servs.,
AFCARS Report Nos. 20 (2012) & 24 (2016) ........ 6
U.S. Dept. of Health & Human Servs.,
AFCARS Report State Data Tables 2016 ........... 10
U.S. Dept. of Health & Human Servs., Evolving
Roles of Public and Private Agencies in
Privatized Child Welfare Systems (March 2008) ... 4
U.S. Dept. of Health & Human Servs.,
History of National Foster Care Month ................ 4
1
INTEREST OF AMICI CURIAE1
Amici curiae are a group of 44 United States
Senators and Members of the United States House of
Representatives.2 They include members of the
Senate Caucus on Foster Youth and the Congressional
Caucus on Foster Youth. All of them have labored long
to address the challenges facing children in the fostercare system and to encourage policies and legislation
to improve those children’s lives.
Amici have sponsored, co-sponsored, and voted
for numerous Acts and Resolutions to strengthen and
expand foster children’s access to loving and qualified
homes and to protect the constitutional and statutory
rights of child welfare providers and of current and
prospective foster and adoptive parents. In addition,
amici are bound by oath to support and defend the
Constitution, and thus have an official interest in this
Court’s interpretation of the First Amendment, which
in turn affects how Congress drafts, considers, and
enacts laws.
1 The parties’ counsel were timely notified of and consented to
the filing of this brief. Neither a party nor its counsel authored
this brief in whole or in part. No person or entity, other than
amici curiae or their counsel made a monetary contribution to
the preparation and submission of this brief.
2 A complete list of the Members of Congress participating as
amici appears in an appendix to this brief.
2
SUMMARY OF THE ARGUMENT
This Court should grant certiorari and review and
correct the lower courts’ rulings that erred both as a
matter of law and by imposing grave and needless
consequences on foster children and those seeking to
serve them. There is no dispute that the need for
qualified foster homes is at crisis levels. Over 5,000
children in Philadelphia, over 16,000 children in
Pennsylvania, and over 437,000 children in the United
States are currently in need of foster care. In the face
of this overwhelming need, the City of Philadelphia
elected to close one of the city’s most successful foster
care agencies and to shun the services of scores of foster
parents. The City’s decision was unnecessary (as the
City has identified no harm it needs to remedy), was
contrary to historic practices and legal precedent, and
was a heart-wrenching reduction in the already
insufficient pool of available foster homes.
The issue presented by this appeal, when properly
understood, is not a difficult one. The question is not
whether the Constitution, this Court, or amici support,
oppose, or are indifferent to the City of Philadelphia’s
policy of welcoming LGBTQ individuals and couples in
adoption and foster care. Indeed, it is undisputed that
under Pennsylvania law (and, to the best of amici’s
knowledge, the law of every state), LGBTQ people who
wish to foster and adopt have the same rights as
heterosexual people. Nothing in this lawsuit will alter
that state of affairs.
Rather, the issue before this Court is whether the
First Amendment will tolerate the City of Philadelphia’s
decision to pivot from that accommodating stance and
quash any child welfare providers who, on the basis of
their sincerely held religious beliefs, are unable to
3
certify unmarried and same-sex couples as prospective
foster parents. Amici believe the First Amendment does
not permit the City’s hostility.
Religion, marriage, and sexuality are deeply
important issues about which Americans hold diverse
beliefs. The freedom to form, express, and exercise those
beliefs without government coercion is enshrined in
the Constitution. See Obergefell v. Hodges, 135 S. Ct.
2584, 2593–94 (2015).3 This freedom extends to those
who hold the “decent and honorable religious or
philosophical” belief that marriage is limited to
opposite-sex unions—a belief that can be held “in good
faith by reasonable and sincere people.” Id. at 2602,
2594. A constitutional problem arises only when the
State—as it has done here—makes a citizen into an
“outlaw” or “outcast” for holding a view of marriage
contrary to the State. Id. at 2600.
A better approach, especially on deeply contested
moral issues that implicate constitutional freedoms of
belief and behavior, is to “create a society in which
both sides can live their own values.” Douglas
Laycock, Religious Liberty and the Culture Wars, 2014
U. ILL. L. REV. 839, 877 (2014). This is the approach
required by the First Amendment, respectfully urged
by amici, and best suited to serve children in need.
The instant petition does not challenge or affect same-sex
marriage, a legal question addressed by the Supreme Court in
2015. But amici believe the same principals of pluralism,
freedom, and accommodation that animated the Court’s decision
in Obergefell likewise mandate accommodation of the religious
parents and providers in the instant proceeding.
3
4
ARGUMENT
I.
There is a long, unbroken, nationwide history
of faith-based providers caring for children in
need as an exercise of, and in keeping with,
their religious beliefs.
The facts presented by this petition are not unique
nor are they confined to the City of Philadelphia. The
animus displayed by the City toward religious foster
parents and providers is but one recent example of a
state or local government that—whether by ignorance
or coercive design—acts as if it cannot both welcome
LGBTQ individuals and simultaneously respect and
accommodate the First Amendment rights of other
foster parents and providers. This hostility ignores
the centuries-old tradition of religious child welfare
providers, and would significantly reduce the supply
of qualified homes at a time when the need is great
and the demand is growing.
From before the nation’s founding till the present
day, care for orphaned, abused, and neglected children
was primarily the prerogative of private and religious
groups. See U.S. Dept. of Health & Human Servs.,
History of National Foster Care Month (“Before the
creation of the Children’s Bureau in 1912, child
welfare and foster care were mainly in the hands of
private and religious organizations.”), available at
https://www.childwelfare.gov/fostercaremonth/about/hi
story/ (last visited July 24, 2019); U.S. Dept. of Health
& Human Servs., Evolving Roles of Public and Private
Agencies in Privatized Child Welfare Systems (March
2008) (“[C]hild welfare services actually originated in
the private sector. [] States and local governments in
some parts of the country have relied on child welfare
services in the private, voluntary sector since at least
5
the early 1800s.”), available at https://aspe.hhs.gov/
basic-report/evolving-roles-public-and-private-agenciesprivatized-child-welfare-systems (last visited July 24,
2019); Susan V. Mangold, Protection, Privatization,
and Profit in the Foster Care System, 60 OHIO ST. L.J.
1295, 1298 (1999) (“Uniquely, foster care had
originally been provided by private agencies with
public agencies later joining as partners. It was
always a ‘privatized’ system, never an exclusively
public one.”); see also GEORGE WHITEFIELD’S JOURNALS,
395–404 (Iain Murray, ed., London 1960) (recounting
how, beginning in 1740, the renowned colonial-era
preacher founded and operated a home for orphaned
boys near Savannah, Georgia).
Even in the modern era, state and municipal
social services agencies partner with and rely on faithbased child welfare providers. To the best of amici’s
considerable knowledge, such providers (including
Catholic Social Services) gladly serve children of every
race, color, national origin, creed, disability, sex,
political belief, sexual orientation, and gender
identity. Without the assistance of these providers,
children would be at an even greater risk of remaining
in government care, especially when the need for
foster families exceeds the limited supply.
For example, according to reports from not long
before this suit was filed, demand for foster homes in
South Carolina has outstripped supply by more than
a two-to-one ratio, and the situation is growing worse.
See Angela Davis, Church, group homes get innovative
to address foster care needs, Greenville Online (March
25, 2017), available at https://www.greenvilleonline.
com/story/news/local/2017/03/25/church-group-homes-get
-innovative-address-foster-care-needs/99166724/. The
6
data indicate a similar increasing demand nationwide. For example, from 2012 to 2016, there was a
10% increase in the number of children in care across
the country. See U.S. Dept. of Health & Human Servs.,
AFCARS Report Nos. 20 & 24, available at
https://www.acf.hhs.gov/sites/default/files/cb/afcarsre
port24.pdf and https://www.acf.hhs.gov/sites/default/
files/cb/afcarsreport20.pdf (last visited July 24, 2019).
The human and financial cost resulting from the
understaffed and overworked foster care system is
real and tragic. See, e.g., M.F. v. Perry Cnty. Children
& Family Servs., 725 Fed. App’x 400 (6th Cir. 2018)
(“This case involves a tragic situation in which an
overworked county Children’s Services agency put two
children in the small home of family friends, whose
live-in grown grandson sexually abused the children.
. . . Plaintiffs argue that the agency defendants did not
find out about the specific threat of the abuse because
of the understaffing and underfunding of the
agency.”); Sarah Torre and Ryan T. Anderson,
Protecting the Religious Liberty of Adoption and
Foster Care Providers (Witherspoon Institute, August
1, 2014) (noting that many teens who age out of the
foster care system in any given year without the
stability and support of a permanent family will rely
on government benefits during their adult lives at a
cost of over $1 billion per year in average public
assistance and support) (citing statistics from the
National Council for Adoption), available at
http://www.thepublicdiscourse.com/2014/08/13623/ (last
visited July 24, 2019).
Religious providers and parents play a critical role
in developing and providing homes to close this gap.
Faith-based providers and networks can tap into faith
7
communities and attract new populations of foster
and adoptive parents. In Arkansas, for example, a
single religious provider, working with a network of
churches who share its religious beliefs and
motivations, has helped recruit almost half the foster
families in the state. See Benjamin Hardy, In
Arkansas, One Faith-Based Group Recruits Almost
Half of Foster Homes, The Chronicles of Social Change
(Nov. 28, 2017), available at https://chronicleofsocial
change.org/featured/arkansas-one-faith-based-grouprecruits-almost-half-foster-homes/28821. That provider,
like Catholic Social Services in Philadelphia, refers
any families with whom it cannot work to other
providers or directly to the state’s Division of Child
and Family Services. The net effect of such practices
is to expand the pool of available homes, not to shrink
it. All qualified prospective parents are still able to
serve—either with another agency or through direct
licensure by the state—and faith-based providers are
able to recruit homes who otherwise might not
volunteer.4 This gives equal treatment to every
person, regardless of faith, race, orientation, or
background.
4 Of the families working with the aforementioned faith-based
provider in Arkansas, for example, 36% said they would not have
become foster or adoptive parents if they had not been exposed
to the organization, and 40% were unsure. See Michael HowellMoroney, On the Effectiveness of Faith-Based Partnerships in
Recruitment of Foster and Adoptive Parents, J. OF PUB.
MANAGEMENT & SOCIAL POLICY, No. 19, Vol. 2, (2013), pp. 176–
77; see also Maggie Jones, God Called Them to Adopt. And Adopt.
And Adopt., The New York Times Magazine (Nov. 14, 2013) (“Of the
dozens of evangelical and conservative Christian parents I spoke to,
many said that church sermons, Christian radio shows or other
Christian campaigns . . . pushed them to adopt.”).
8
In addition, some religious providers excel at
placing children who may have a more difficult time
finding homes, including older children, sibling
groups, and those with special needs. See Shamber
Flore, My Adoption Saved Me, The Detroit News
(March 7, 2018), available at https://www.detroitnews.
com/story/opinion/2018/03/07/religious-adoption-agenciesaclu/32717127/ (last visited July 24, 2019); Maggie
Jones, God Called Them to Adopt. And Adopt. And
Adopt., The New York Times Magazine (Nov. 14, 2013)
(recounting how Christian families, prompted by their
faith and the urging of religious agencies, felt called to
adopt multiple foster children, many of whom had
special needs).
Religious providers and parents see their
charitable work as a religious ministry, and they view
the upbringing of children and care of orphans as
religious duties. For instance, an oft-repeated
teaching in the Jewish Tanakh (first appearing in the
Torah, and then repeated in the Nevi’im and the
Ketuvim) is that God is deeply and personally
concerned with the care of fatherless children. See,
e.g., Deuteronomy 10:18 (“God executes justice for the
fatherless and the widow and loves the sojourner,
giving him food and clothing”). This teaching is
accepted as sacred by Muslims and Christians,
meaning it is scripture to almost 4 billion people—
over half the world’s population, and more than 80%
of Americans. See Pew Research Center, The Future
of World Religions: Population Growth Projections,
2010-2050, Demographic Study (April 2, 2015),
available at http://www.pewforum.org/2015/04/02/
religious-projections-2010-2050/.
Likewise, in the Christian faith, Scripture and
9
Jesus himself command special care and solicitude be
shown to children generally and to the needy and
orphans particularly. See, e.g., Matthew 18:5–10
(“Whoever receives one such child in my name receives
me. . . . See that you do not despise one of these little
ones.”); Mark 10:14–16 (“Let the children come to me;
do not hinder them, for to such belongs the kingdom of
God.”); James 1:27 (“Religion that is pure and undefiled
before God, the Father, is this: to visit orphans and
widows in their affliction.”).5
Not surprisingly, then, while faith-based child
welfare providers serve children of every background
and situation, many such providers believe their
recruiting and certifying of prospective foster homes is
guided by and subject to certain of their long-standing
religious convictions, including their beliefs regarding
marriage and sexuality. Moreover, these providers have
always had the freedom to protect the integrity of their
ministry by making associational choices in keeping with
their convictions.
In the instant proceeding, the lower courts’ rulings
Indeed, religiously-motivated care for unwanted, abused, or
orphaned children has been a hallmark of the Christian faith for
millennia. See Polycarp, Philippians 6.1 (c. A.D. 110) (“The
presbyters, for their part, must be compassionate, merciful to all
. . . not neglecting a widow, orphan, or poor person, but always
aiming at what in honorable in the sight of God and of people.”);
Apology of Aristides the Philosopher 15 (c. A.D. 125) (“[T]hey love
one another; and from widows they do not turn away their
esteem; and they deliver the orphan from him who treats him
harshly.”); Timothy Miller, The Orphans of Byzantium: Child
Welfare in the Christian Empire, 174–75 (2003) (noting that
during the Middle Ages, the Church maintained “group homes
large enough to care for and educate all the local children whose
parents had left them without guardians.”).
5
10
fail to reckon with the lengthy and vitally needed
tradition of religious believers exercising their faith by
providing foster and adoption services—services that
are needed now more than ever. Over 16,000 children
in Pennsylvania and over 437,000 children in the
United States are currently in need of foster care. See
U.S. Dept. of Health & Human Servs., AFCARS
Report State Data Tables 2016, available at
https://www.acf.hhs.gov/sites/default/files/cb/afcars_
state_data_tables_07thru16.xlsx (last visited July 24,
2019). In addition, more than 3,000 children in
Pennsylvania and 117,000 across the country await
adoption. Id. The need far exceeds the supply of
available homes, and these children—who come from
diverse backgrounds and have diverse needs—are
best served by a broad spectrum of providers and
parents. Religiously motivated providers and parents
have played a critical role in filling this need for
centuries from coast to coast, and to drive them out
ignores the critical need and the grave harm to
children that would be caused by their loss.
II. Government partnership with religious social
services providers is a permissible, feasible,
and historically common practice.
Examined through the lenses of history and contemporary practices, the permissibility and salutary
effects of government partnership with religious
providers are clear. In the absence of this Court’s review
and correction of the lower courts’ rulings in the instant
appeal, however, this mutually-beneficial and longstanding practice will be increasingly challenged, and
11
the rights of cities, States, and religious providers will
be increasingly chilled.6
A. Government accommodation of and contracting
with religious entities is historically common.
State and federal governments have been contracting with religious ministries to provide a variety of
services to vulnerable populations for hundreds of years.
For instance, almost one of six hospitals in the United
States are Catholic, and they fulfill a variety of services
for the government and receive reimbursement through
government programs like Medicare and Medicaid.7
There is a similarly well-established history of government partnership with religious child welfare providers:
The history of government funding of services
provided by private organizations, especially
6 Indeed, such challenges are already underway and continue to
mount. See, e.g., Complaint, Rogers v. U.S. Dep’t of Health &
Human Servs., No. 19-01567 (D.S.C. May 30, 2019), ECF No. 1.;
Complaint, Maddonna v. U.S. Dep’t of Health & Human Servs.,
No. 19-00448 (D.S.C. Feb. 15, 2018), ECF No. 1; Complaint,
Marouf v. Azar, No. 18-cv-00378 (D.D.C. Feb. 20, 2018), ECF No.1.
7 This practice has a lengthy pedigree and has been upheld by the
courts. See Bradfield v. Roberts, 175 U.S. 291 (1899) (holding federal
contract with a Roman Catholic hospital operated by nuns to serve
the poor did not violate the Establishment Clause); Edward Queen,
History, Hysteria, and Hype: Government Contracting with FaithBased Social Service Agencies, Religions 2017 (“In the medical field,
an 1889 survey of seventeen major hospitals revealed that 12%–
13% of their income came from government sources and a 1904
Census Bureau survey estimated that governments provided eight
percent of all hospital income nationwide, a figure exceeded in many
states. Given that the overwhelming number of private hospitals at
that time had been established under the auspices of religious
organizations a large portion of this money went to hospitals
founded on religious principles.”).
12
private eleemosynary organizations, is a long
one.
*
*
*
For example, in 1806 the New York Orphan
Asylum, a decidedly Protestant organization,
established an orphanage, which, by decade’s
end, received state monies to support over 200
orphans.
*
*
*
Most orphanages during that time were
established along religious lines and served
orphans of a particular faith. In fact, they
were subsidized by New York and other cities
for doing exactly that. That both the state
government and others recognized this fact is
illustrated by the 1863 act of the New York
legislature to charter the Roman Catholic
Protectory to receive truant, vagrant, and
delinquent children whose parents or
guardians had requested the courts to commit
them to a Catholic establishment rather than
to the House of Refuge or other predominantly
Protestant institutions.
*
*
*
By the beginning of the twentieth century, the
use of private non-profit organizations for the
provision of services to the orphaned, the sick,
and the destitute was widespread throughout
the United States.
Queen, History, Hysteria, & Hype, Religions 2017 at 4–
5; see also pp. 4–5, supra. In sum, government licensing
13
of and contracting with faith-based social services
providers was historically common and permissible.
B.
Government accommodation of faith-based
providers remains feasible and permissible.
The historic practice of accommodating and
partnering with faith-based entities is both feasible
and permissible today. See, e.g., Bowen v. Kendrick,
487 U.S. 589 (1988) (holding the direct federal funding
of faith-based counseling centers to provide social
services was permissible and noting “that this Court
has never held that religious institutions are disabled
by the First Amendment from participating in
publicly sponsored social welfare programs”).8
Such accommodations are, in fact, still practiced
today by state and local governments in this very
context. The states of South Carolina and Texas, to
name but two examples, have recognized the immense
value faith-based foster care agencies provide and
have found ways to accommodate such providers’
beliefs and practices while simultaneously ensuring
that any qualified person may serve as a foster parent.
See, e.g., Gov. Henry McMaster’s Exec. Order No.
2018-12 (Mar. 13, 2018), available at https://governor.
8 The federal government’s use of religious contractors likewise
continues in the present day. For example, a search of
USASpending.gov for entities narrowly classified as “religious
organizations” turns up over 2,000 contracts in FY2013 alone,
and that does not count many more ministries classified as “nonprofits.” Such ministries provide a variety of important services,
including housing and care for homeless veterans, drug
prevention programs for youth, comprehensive medical
assistance, substance abuse rehabilitation, ministries to prison
inmates, and much-needed and well-deserved retreats for service
members and their families.
14
sc.gov/sites/default/files/Documents/Executive-Orders/
2018-03-13-FILED-Executive-Order-No-2018-12.pdf;
Letter from Texas Atty. Gen. Ken Paxton to U.S. Dept.
of Health & Human Servs. (December 17, 2018),
available at https://www.texasattorneygeneral.gov/sites
/default/files/images/admin/2018/Press/Letter%20KP%
20to%20HHS%20re%20Title%20IV-E%20Foster%20Care
%20Funding%20Waiver%20Final%20Signed.pdf.
Such accommodations are premised in part on the
recognition that private faith-based providers are
exactly that—private entities who retain their
constitutional and statutory rights of association,
expression, and religious exercise even when
contracting with the government. See generally Ismail
v. Cnty. of Orange, 693 Fed. App’x 507, 512 (9th Cir.
2017) (holding foster parents were not state actors);
Leshko, 423 F.3d 337 (same); Hall v. Smith, 497 Fed.
App’x 366 (5th Cir. 2012) (holding a private childplacing agency’s placement of a child with foster
parent was not state action); Rayburn v. Hogue, 241
F.3d 1341 (11th Cir. 2001) (holding foster parents who
provide services pursuant to contract with the state
were not engaged in state action); Milburn, 871 F.2d
at 479 (same); Malachowski v. City of Keene, 787 F.2d
704 (1st Cir. 1986) (holding non-profit organization
that made foster homes available and provided child
placement to court was not engaged in state action);
P.G. v. Ramsey Cnty., 141 F. Supp. 2d 1220, 1226 (D.
Minn. 2001) (holding foster parents are not state
actors); Letisha A. v. Morgan, 855 F. Supp. 943 (N.D.
Ill. 1994) (holding a private home for abused or
neglected children was not engaged in state action);
Pfoltzer v. Cnty. of Fairfax, 775 F. Supp. 874 (E.D. Va.
1991) (holding foster parents who cared for children
under state guidelines were not engaged in state
15
action); accord Rendell-Baker v. Kohn, 457 U.S. 830,
842 (1982) (“That a private entity performs a function
which serves the public does not make its acts state
action.”).
These accommodations are further premised on
the recognition that adoption and foster care and
placement are not exclusively (or even especially)
government functions. See, e.g., Leshko v. Servis, 423
F.3d 337, 343 (3d Cir. 2005) (“No aspect of providing
care to foster children in Pennsylvania has ever been
the exclusive province of the government.”); Milburn
v. Anne Arundel Cty. Dep’t of Soc. Servs., 871 F.2d 474,
479 (4th Cir. 1989) (“[T]he care of foster children is not
traditionally the exclusive prerogative of the State.”);
Malachowski v. City of Keene, 787 F.2d 704, 711 (1st
Cir. 1986) (per curiam) (“[C]hild care and placement
is not traditionally the exclusive prerogative of the
state.”); Marr v. Schofield, 307 F. Supp. 2d 130, 134
(D. Me. 2004) (“Courts generally have agreed that
foster parents do not perform a function that is
reserved exclusively to the state.”); see also Part I,
supra.
Such accommodations and partnerships are
further premised on the recognition that preventing
religious entities from participating in government
programs would create a clear Free Exercise problem.
See Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S. Ct. 2012, at 2025 (June 26, 2017)
(holding the state’s policy of “expressly denying a
qualified religious entity a public benefit solely
because of its religious character . . . goes too far” and
“violates the Free Exercise Clause”); Hartmann v.
Stone, 68 F.3d 973 (6th Cir. 1995) (striking down an
Army regulation prohibiting on-base child care
16
providers from engaging in religious exercise, holding
that even where the Army funded, insured, and owned
the facilities, and reimbursed provider costs, the
Army’s goal of avoiding entanglement with religion
was an insufficient basis to encroach on the providers’
First Amendment rights).9 In short, governmental
accommodation of and contracting with faith-based
providers remains feasible and permissible today.
III. Children in need of loving homes are best served
by State accommodation of religious providers
and parents and the resulting increase in the
number of available homes.
The facts underlying this appeal present a bitter
irony. In the name of inclusion, the City of
Philadelphia and its agencies have shut down a
sizeable child welfare provider and rejected the
service of scores if not hundreds of current and
potential foster and adoptive parents who partner
with these providers, thereby reducing the pool of
qualified and loving homes available to children in
9 See also Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet,
512 U.S. 687, 715 (1994) (O’Connor, J., concurring) (“[T]he
Religion Clauses . . . all speak with one voice on this point: Absent
the most unusual circumstances, one’s religion ought not affect
one’s legal rights or duties or benefits.”); Midrash Sephardi, Inc.
v. Town of Surfside, 366 F.3d 1214, 1239 (11th Cir. 2004) (“[T]o
deny equal treatment to a [religious organization] on the grounds
that it conveys religious ideas is to penalize it for being religious.
Such unequal treatment is impermissible based on the precepts
of the Free Exercise, Establishment and Equal Protection
Clauses.”); Christian Legal Society v. Walker, 453 F.3d 853 (7th
Cir. 2006) (holding a public university erred by revoking a
religious student group’s status due to its requirement that its
student leaders adhere to beliefs and behaviors consistent with
its religious tenets).
17
desperate need.
The City has identified no injury that prompted
this drastic “remedy” and has identified no harm that
would be caused by accommodating these religious
providers and parents. The City’s decision to shut out
certain providers was apparently precipitated by
religious providers’ inability to certify same-sex
couples as prospective foster parents without
violating their doctrinal beliefs regarding marriage,
and respectfully referring other applicants to other
providers or directly to the City’s Department of
Human Services. This practice didn’t (and doesn’t)
prevent anyone from becoming a foster or adoptive
parent. It is undisputed that under Pennsylvania law,
LGBTQ people who wish to foster and adopt have the
same rights and access as heterosexual people. The
practices of two religious providers have no effect on
those rights, and nothing in this lawsuit will alter
those rights.
The attempts below to identify an injury caused
by the religious providers’ practices miss the mark,
and the assertion that accommodation of religious
providers prevents anyone from fostering or reduces
the pool of available homes is plainly incorrect for at
least two reasons.
First, there is no evidence—either in the Record,
the scholarly literature, or the public domain—that
the practice of religious providers in Philadelphia (or
elsewhere) of referring same-sex couples to another
agency causes a significant inconvenience to the
applicants, much less prevents them from becoming
foster parents. It is not a difficult task to find dozens
of other foster care providers in Philadelphia with
whom to apply. Indeed, the very first result for the
18
Google search, “Foster agencies in Philadelphia,” is an
official City website that encourages the reader to
“[b]rowse the list of foster agencies to find the best fit
for you,” and links to a list of no fewer than 24 licensed
foster agencies in the city which will partner with any
qualified applicant regardless of his or her creed,
sexual orientation, or gender identity. See City of
Philadelphia Dept. of Human Servs., Foster Care
Licensing Agencies (contracted by Philadelphia DHS),
available at https://www.phila.gov/media/20190710
120952/DHS_Philadelphia_Foster_Care_Agencies_04
1119.pdf (last visited July 24, 2019).
Second, there is no evidence—either in the
Record, the scholarly literature, or the public
domain—that the practice of religious providers in
Philadelphia (or elsewhere) of referring same-sex
couples to another foster care agency deprives needy
children of families or reduces the pool of qualified
foster homes. In fact, the literature and social science
contains evidence to the contrary, namely that
religious child welfare providers expand the pool of
available homes by recruiting from a community of
like-minded believers who otherwise likely would not
have applied to become foster or adoptive parents. See
Michael Howell-Moroney, On the Effectiveness of
Faith-Based Partnerships in Recruitment of Foster
and Adoptive Parents, J. OF PUB. MANAGEMENT &
SOCIAL POLICY, No. 19, Vol. 2, (2013), pp. 176–177
(noting that one religious provider had recruited from
likeminded churches nearly half the foster families in
the state, 36% of whom said they would not have
become foster or adoptive parents had they not been
exposed to the organization, and 40% of whom were
unsure); Maggie Jones, God Called Them to Adopt. And
Adopt. And Adopt., The New York Times Magazine
19
(Nov. 14, 2013) (“Of the dozens of evangelical and
conservative Christian parents I spoke to, many said
that church sermons, Christian radio shows or other
Christian campaigns . . . pushed them to adopt.”).
In sum, amici believe the answer to the legal issue
presented in this proceeding—namely, whether the
First Amendment protects the rights of religious foster
parents and providers to minister in accordance with
their religious beliefs—is “yes.” And amici believe the
answer to the practical, underlying question—namely,
how to create the largest pool of qualified and loving
homes for children in need—supports and, indeed,
requires that answer as well.
CONCLUSION
For the foregoing reasons, amici curiae respectfully
request this Court grant the Petition for Certiorari
and bring needed clarity and historical consistency to
First Amendment jurisprudence in this context.
Miles E. Coleman
Counsel of Record
NELSON MULLINS RILEY &
SCARBOROUGH, LLP
1320 Main Street, 17th Floor
Columbia, SC 29201
miles.coleman@nelsonmullins.com
(803) 799-2000
Counsel for Amici Curiae
August 26, 2019
1a
APPENDIX — COMPLETE LIST OF AMICI CURIAE
I.
United States Senators
Tim Scott (SC)
Lead Senate amicus curiae
Marsha Blackburn (TN)
Roy Blunt (MO)
John Boozman (AR)
Mike Braun (IN)
Kevin Cramer (ND)
Ted Cruz (TX)
Steve Daines (MT)
Michael B. Enzi (WY)
Joni Ernst (IA)
Lindsey Graham (SC)
Josh Hawley (MO)
James M. Inhofe (OK)
James Lankford (OK)
James E. Risch (ID)
II.
Members of the United States House of
Representatives
Mike Kelly (PA-03)
Lead House amicus curiae
Robert B. Aderholt (AL-03)
Rick Allen (GA-12)
Brian Babin (TX-36)
Jim Banks (IN-03)
Kevin Brady (TX-08)
Ted Budd (NC-13)
2a
Jeff Duncan (SC-03)
Bill Flores (TX-17)
Matt Gaetz (FL-01)
Louie Gohmert (TX-01)
Glenn Grothman (WI-06)
Vicky Hartzler (MO-04)
Jody B. Hice (GA-10)
Clay Higgins (LA-03)
Jim Jordan (OH-04)
Steve King (IA-04)
Doug Lamborn (CO-05)
Debbie Lesko (AZ-08)
Mark Meadows (NC-11)
Ralph Norman (SC-05)
Pete Olson (TX-22)
Bill Posey (FL-08)
Steve Scalise (LA-01)
William Timmons (SC-04)
Tim Walberg (MI-07)
Randy K. Weber (TX-14)
Brad Wenstrup (OH-02)
Ron Wright (TX-06)
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.