Amicus Curiae Brief — Sharonell Fulton, et al., Petitioners v. City of Philadelphia, Pennsylvania, et al.

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 Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

_______________________

Brief of 76 United States Senators and

Members of the House of Representatives

as amici curiae in support of Petitioners

_______________________

NELSON MULLINS RILEY & SCARBOROUGH, LLP

Miles E. Coleman, Counsel of Record

miles.coleman@nelsonmullins.com

2 W. Washington St., 4th Floor

Greenville, SC 29601

(864) 373-2352

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 76 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.

The parties’ counsel 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.

1

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 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 who 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, under 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

certify unmarried and same-sex couples as prospective

3

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, like Petitioners, 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.

3 The instant appeal 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.

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 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 June 3, 2020); 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 June 3,

2020); 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 June 3, 2020).

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 June 3, 2020).

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 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. 176–77; 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-agen

cies-aclu/32717127/ (last visited June 3, 2020); 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.

5 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.”).

10

In the instant proceeding, the lower courts’ rulings

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 June 3,

2020). 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, Maddonna v. U.S. Dep’t of Health &

Human Servs. et al., No. 19-03551 (D.S.C. Dec. 20, 2019);

Complaint, Rogers v. U.S. Dep’t of Health & Human Servs. et al.,

No. 19-01567 (D.S.C. May 30, 2019); Complaint, Marouf v. Azar,

No. 18-cv-00378 (D.D.C. Feb. 20, 2018).

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.

The federal government’s use of religious contractors

likewise continues in the present. 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

“non-profits.” 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.

8

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

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

qualified and loving homes available to children in

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

18

whom to apply. Indeed, the very first result for the

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 June 3, 2020).

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

19

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.”).

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 reverse the lower

courts’ rulings 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

2 West Washington Street, Fourth Floor

Greenville, SC 29601

miles.coleman@nelsonmullins.com

(864) 373-2352

Counsel for Amici Curiae

June 3, 2020

1a

APPENDIX — COMPLETE LIST OF AMICI CURIAE

I.

United States Senators

Tim Scott (SC)

Lead Senate amicus curiae

James E. Risch (ID)

James Lankford (OK)

Lindsey O. Graham (SC)

Ben Sasse (NE)

Michael B. Enzi (WY)

John Boozman (AR)

Josh Hawley (MO)

Steve Daines (MT)

Roy Blunt (MO)

James M. Inhofe (OK)

Pat Toomey (PA)

Roger F. Wicker (MS)

Kelly Loeffler (GA)

Marsha Blackburn (TN)

Kevin Cramer (ND)

Tom Cotton (AR)

Richard Burr (NC)

Mike Braun (IN)

Joni K. Ernst (IA)

Cindy Hyde-Smith (MS)

Mike Lee (UT)

Ted Cruz (TX)

II.

Members of the United States House of

Representatives

Mike Kelly (PA-03)

Lead House amicus curiae

2a

Ralph Norman (SC-5)

Jeff Duncan (SC-3)

William Timmons (SC-4)

Randy Weber (TX-14)

Doug Lamborn (CO-5)

Louie Gohmert (TX-1)

Steve King (IA-4)

Bill Flores (TX-17)

Brad R. Wenstrup, D.P.M. (OH-2)

Brian Babin, D.D.S. (TX-36)

Robert B. Aderholt (AL-4)

Ted Budd (NC-13)

Ted S. Yoho, D.V.M. (FL-3)

Jody B. Hice (GA-10)

Kevin Hern (OK-1)

Ron Wright (TX-6)

W. Gregory Steube (FL-17)

Dan Bishop (NC-9)

Pete Olson (TX-22)

Matt Gaetz (FL-1)

Guy Reschenthaler (PA-14)

Carol Miller (WV-3)

Neal Dunn (FL-2)

Steve Chabot (OH-1)

Vicky Hartzler (MO-4)

Fred Keller (PA-12)

Michael Guest (MS-3)

Andy Biggs (AZ-5)

David Rouzer (NC-7)

Lloyd Smucker (PA-11)

Michael Conaway (TX-11)

3a

Garret Graves (LA-6)

Paul Cook (CA-8)

Debbie Lesko (AZ-8)

Doug LaMalfa (CA-1)

Chuck Fleischmann (TN-3)

Jim Jordan (OH-4)

Andy Harris, M.D. (MD-1)

Mike Johnson (LA-4)

Scott Perry (PA-10)

Rick W. Allen (GA-12)

Alex X. Mooney (WV-2)

Glenn “GT” Thompson (PA-15)

Tom Emmer (MN-6)

John Rutherford (FL-4)

Dan Meuser (PA-9)

Roger Williams (TX-25)

Greg Gianforte (MT-At Large District)

Russ Fulcher (ID-1)

Chris Stewart (UT-2)

David P. Roe, M.D. (TN-1)

Ken Calvert (CA-42)