Amicus Curiae Brief — Sharonell Fulton, et al., Petitioners v. City of Philadelphia, Pennsylvania, et al.
Supreme Court briefJun 3, 2020
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No. 19-123
In the
Supreme Court of the United States
__________________
SHARONELL FULTON, ET AL.,
Petitioners,
v.
CITY OF PHILADELPHIA, PENNSYLVANIA, ET AL.,
Respondents.
__________________
On Writ of Certiorari to the
United States Court of Appeals for the Third Circuit
__________________
BRIEF OF THE COALITION FOR JEWISH VALUES,
THE CALL, LIFELINE CHILDREN’S SERVICES,
FAITHBRIDGE FOSTER CARE, PROF. ELIZABETH
KIRK, AND PROF. DAVID SMOLIN AS AMICI
CURIAE IN SUPPORT OF PETITIONERS
__________________
PHILIP D. WILLIAMSON
Counsel of Record
SPENCER COWAN
TAFT STETTINIUS & HOLLISTER LLP
425 Walnut Street, Suite 1800
Cincinnati, Ohio 45202
(513) 381-2838
pwilliamson@taftlaw.com
scowan@taftlaw.com
Counsel for Amici Curiae
June 3, 2020
Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . iv
INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . 1
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . 4
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I.
Religious foster and adoption agencies are
motivated by comprehensive religious beliefs
about the nature of families . . . . . . . . . . . . . . 7
II.
Faith-based agencies have long played an
indispensable role in caring for vulnerable
children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
A. Faith-based agencies pioneered the field
of care for vulnerable children before
state and local governments were
involved. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
B. Faith-based agencies remained effective
partners after state and local
governments entered the field of child
welfare . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
III.
In order to carry out the mission of caring for
vulnerable children, faith-based
organizations must partner with state and
local governments . . . . . . . . . . . . . . . . . . . . . 14
A. State and local governments are the
exclusive gatekeepers of the child welfare
system. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ii
B. In order to engage with the child welfare
system at any level, an organization
must cooperate with state and local
authorities . . . . . . . . . . . . . . . . . . . . . . . . 15
C. Amid the diverse ways faith-based
organizations work with state and local
governments, the intensive nature of the
home study process for prospective foster
parents is a national constant . . . . . . . . . 16
IV.
Faith-based agencies play a unique and
irreplaceable role in the foster care and
adoption system. . . . . . . . . . . . . . . . . . . . . . . 18
A. Faith-based agencies are uniquely
effective in recruiting and sustaining
foster families. . . . . . . . . . . . . . . . . . . . . . 19
B. F a i t h - b a s e d
agencies
provide
critical community and support for foster
families . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
C. Faith-based agencies are effective
partners in family reunification plans . . 24
V.
Excluding faith-based agencies concretely
harms vulnerable children and the families
who care for them . . . . . . . . . . . . . . . . . . . . . 25
A. Excluding faith-based organizations will
lead to fewer foster homes, exacerbating
an existing crisis . . . . . . . . . . . . . . . . . . . 26
B. Excluding faith-based organizations will
harm foster children of all religious
backgrounds . . . . . . . . . . . . . . . . . . . . . . . 27
iii
C. Excluding faith-based organizations will
cut off continuity of care and delay
permanence for vulnerable children . . . . 30
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
iv
TABLE OF AUTHORITIES
CASES
Church of the Lukumi Babalu Aye, Inc. v.
City of Hialeah,
508 U.S. 520 (1993). . . . . . . . . . . . . . . . . . . . . . . . 7
McCreary Cty., Ky. v. Am. Civil Liberties
Union of Ky., 545 U.S. 844 (2005) . . . . . . . . . . . 32
Obergefell v. Hodges,
135 S. Ct. 2584 (2015). . . . . . . . . . . . . . . . . . . . . 33
United States v. Windsor,
570 U.S. 744 (2013). . . . . . . . . . . . . . . . . . . . . . . 33
STATUTES
Ala. Admin. Code 660-5-29-.02 . . . . . . . . . . . . . . . . 16
Ala. Admin. Code 660-5-29-.07 . . . . . . . . . . . . . . . . 16
Ala. Code § 38-7-4. . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Ark. Code Ann. § 9-28-407 . . . . . . . . . . . . . . . . . . . . 15
Code Ark. R. 016.15.2-206 . . . . . . . . . . . . . . . . . . . . 16
Code Ark. R. 016.15.2-207 . . . . . . . . . . . . . . . . . 16, 17
Code Ark. R. 016.15.2-210 . . . . . . . . . . . . . . . . . 15, 16
Ga. Code Ann. § 49-5-12. . . . . . . . . . . . . . . . . . . . . . 15
Ga. Code Ann. § 49-5-12(b) . . . . . . . . . . . . . . . . . . . 17
Ga. Comp. R. & Regs. 290-2-5-.13 . . . . . . . . . . . 16, 17
v
OTHER AUTHORITIES
Adoption and Foster Care Analysis and Reporting
System (AFCARS) FY 2018 data, U.S.
Department of Health & Human Services . . . . 23
Charles Loring Brace, New World Encyclopedia . . 12
CHAMPS Policy Playbook 2nd Edition, 19-26 (Jan.
2019) https://playbook.fosteringchamps.org/wpcontent/uploads/2019/01/champs-playbook.pdf . 22
Child Welfare Outcomes 2016: Report to Congress,
U.S. Department of Health & Human Services
https://www.acf.hhs.gov/sites/default/files/cb/c
wo2016.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Kelsi Brown Corkran, Free Exercise in Foster Care:
Defining the Scope of Religious Rights for Foster
Children and Their Families, 72 U. Chi. L. Rev.
325 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Kelsi Brown Corkran, Principal-Agent Obstacles to
Foster Care Contracting, 2 J.L. Econ. & Pol’y 29
(2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Mary Ellen Cox, Cheryl Buehler, & John Orme,
Recruitment and Foster Family Service, J. Soc. &
Soc. Welfare Vol. 29, No. 3 (2002) . . . . . . . . . . . 22
FaithBridge Foster Care 2019 Annual Report
https://f7h2s3c3.stackpathcdn.com/wp-content/
uploads/2020/05/2019-FaithbridgeAnnualReport
.pdf. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Families Count, Lifeline Children’s Services
https://lifelinechild.org/families-count/ . . . . . . . 24
vi
Foster Care as a Support to Families, U.S.
Department of Health & Human Services (Apr.
29, 2020) https://www.acf.hhs.gov/sites/default/
files/cb/im2006.pdf . . . . . . . . . . . . . . . . . . . . 24, 25
Foster Care Housing Crisis, The Chronicle of Social
Change, Appendix A https://perma.cc/9SK8WFXA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Pope Francis, Address to Humanum: An
Interreligious Dialogue on the Complementarity
of Man and Woman, (Nov. 17, 2014),
https://perma.cc/9HAA-FPS2 . . . . . . . . . . . . . . . 10
David Gates, History of the Orphanage, Newsweek
(Dec. 11, 1994, 7:00 PM) https://perma.cc/C9XAB28R . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Benjamin Hardy, In Arkansas, One Faith-Based
Group Recruits Almost Half of Foster Homes,
The Chronicle of Social Change (Nov. 18, 2017)
https://perma.cc/BJF9-TJDP . . . . . . . . . . . . 19, 20
Timothy A. Hacsi, Second Home: Orphan Asylums
and Poor Families in America (1997) . . 11, 12, 13
Jim Hemerling, Julie Kilmann, and Dave
Matthews, The Head, Heart, and Hands of
Transformation, The Boston Consulting Group
(November 2018), https://image-src.bcg.com/
Images/BCG-The-Head-Heart-and-Hands-ofTransformation-Nov-2018%20%281%29_tcm9206341.pdf . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
vii
Dennis P. Hollinger, Head, Heart and Hands:
Bringing Together Christian Thought, Passion
and Action (2005) . . . . . . . . . . . . . . . . . . . . . . . . . 7
Elizabeth Kirk, A Mother’s Day Reflection: Don’t Be
Afraid of Adoption, The Leaven (May 12, 2017)
https://perma.cc/KCT8-CT89 . . . . . . . . . . . . . . . . 8
Jessica Lahey, Every Time Foster Kids Move, They
Lose Months of Academic Progress, The Atlantic
(Feb. 28, 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Susan Vivian Mangold, Protection, Privatization,
and Profit in the Foster Care System, 60 Ohio St.
L.J. 1295 (1999). . . . . . . . . . . . . . . . . . . . . . . 13, 14
Emil Moffat, Alpharetta Foster Care Agency Sees
More Families Signing Up For Online Training
(May 21, 2020) https://perma.cc/9M3X-UD3R. . 20
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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
Michael Howell-Moroney, The Empirical Ties
between Religious Motivation and Altruism in
Foster Parents: Implications for Faith-Based
Initiatives in Foster Care and Adoption,
Religions, Vol. 5, No. 3 (2014) . . . . . . . . . . . . . . 20
Kasia Murray & Sarah Gesiriech, A Brief
Legislative History of the Child Welfare System,
Pew Charitable Trusts . . . . . . . . . . . . . . . . . . . . 13
viii
Hannah Roman, Foster Parenting As Work, 27 Yale
J.L. & Feminism 179 (2016) . . . . . . . . . . . . . . . . 14
David Rubin, Amanda O’Reilly, & Xianqun Laun,
The Impact of Placement Stability on Behavior
Well-Being for Children in Foster Care,
Pediatrics (Feb. 2007) . . . . . . . . . . . . . . . . . . . . . 30
David M. Smolin, Of Orphans and Adoption,
Parents and the Poor, Exploitation and Rescue:
A Scriptural and Theological Critique of the
Evangelical Christian Adoption and Orphan
Care Movement, 8 Regent J. Int’l L. 267 (2012) . 8
Tim Townsend, Catholic Charities in Springfield,
Ill., transfers its foster care, St. Louis PostDispatch (Jan. 10, 2012) https://perma.cc/G6JAWGQK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
U.S. Department of Health & Human Services,
https://cwoutcomes.acf.hhs.gov/cwodatasite/fou
rOne/index. . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29
Fred Wulczyn, et al., The Dynamics of Foster Home
Recruitment and Retention 9, The Center for
State Child Welfare Data (Sept. 2018)
https://perma.cc/Z5UR-CRAG . . . . . . . . . . . . . . 22
1
INTERESTS OF AMICI CURIAE1
The Coalition for Jewish Values (“CJV”) is a charity
incorporated in the State of Maryland and operating
pursuant to 26 U.S.C. §501(c)(3). CJV represents over
1,500 traditional, Orthodox rabbis and advocates for
classical Jewish ideas and standards in matters of
American public policy.
The CALL is an Arkansas-based non-profit working
to educate, equip, and encourage the Christian
community to provide a future and a hope for children
in foster care in Arkansas. Founded in 2007, The CALL
has recruited and trained two-thirds of all foster
families in Arkansas; those families have adopted 1500
children, and cared for 18,000 children in foster care.
The CALL actively recruits foster families in
chronically under-served rural counties. The CALL
does not certify foster families or place children. The
CALL works closely with the Arkansas Department of
Children and Family Services to provide statemandated pre-service training and continuing
education for foster families, free of charge. The CALL
also provides wrap-around services and support for
foster families in Arkansas.
Lifeline Children’s Services (“Lifeline”) is an
Alabama-based ministry dedicated to providing Gospelcentered service to vulnerable children, women, and
men experiencing crisis pregnancies and to broken
1
All parties have consented to the filing of this brief. No counsel
for a party authored this brief in whole or in part, and no person
or entity other than the amicus curiae or their counsel made a
monetary contribution intended to fund the preparation of this
brief.
2
families in need of restoration. Lifeline provides statemandated pre-service training, home studies, and
continuing education for foster families. Lifeline also
places children with foster families. Lifeline
emphasizes family reunification, and to that end,
Lifeline has mobilized churches in ten states to provide
county- and state-approved parenting classes as part of
reunification plans for foster children. Lifeline licenses
its training program to churches on the condition that
the churches provide that training to families free of
charge.
FaithBridge Foster Care (“FaithBridge”) is one of
the largest private child placement agencies in Georgia,
and its Christ-centered beliefs are core to every part of
its work. Founded in 2007, FaithBridge recruits, trains,
and licenses foster care families in Georgia.
FaithBridge also partners with local churches to
provide wrap around services and support to
FaithBridge foster families in the local community.
Professor Elizabeth Kirk, J.D. is the Director of the
St. Lawrence Center’s Institute for Faith and Culture
and serves as its Kowalski Chair of Catholic Thought.
She is also an associate scholar for the Charlotte Lozier
Institute, serving as a legal policy expert, with a special
interest in adoption law and policy.2
Professor David Smolin is the Harwell G. Davis
Professor of Constitutional Law and Director of the
Center for Children, Law and Ethics at Samford
2
Professor Kirk submits this brief in her individual capacity, not
as a representative of the St. Lawrence Center or the Charlotte
Lozier Institute.
3
University’s Cumberland School of Law.3 As an expert
in the areas of adoption, foster care, and children’s
rights, he believes that meeting the complex needs of
vulnerable children in the child welfare system
requires a broad inclusion of persons and
organizations, working together with governments.
Hence, Professor Smolin supports both the inclusion of
LGBTQ persons as foster and adoptive parents, and
also supports the inclusion of religious agencies and
religious adoptive and foster parents, including those
whose religious beliefs do not accept same-gender
marriage.
3
Professor Smolin submits this brief in his individual capacity, not
as a representative of Samford University or the Cumberland
School of Law.
4
SUMMARY OF ARGUMENT
One of the amici relays the following true story:
A pastor and his wife took in a foster child who,
at just eleven years old, had already been in
more than a dozen foster care placements. It is
common for a foster child—particularly one
traumatized by an unstable foster care
experience—to test the foster family’s limits: “Do
they love me, or will they get rid of me when I
misbehave, just like everyone else?” This child
chose a particularly difficult test. Every day he
entered the pastor’s home study and urinated on
the floor. Day after day, the pastor and his wife
cleaned up the mess and reaffirmed that they
would love this child no matter what he did. And
after seven urine- and tear-stained weeks,
something clicked. The child finally felt secure in
his foster parents’ love and stopped peeing on
the floor.
Two things sustained those foster parents through an
extraordinarily difficult time: the firm conviction that
loving this child was a decision and a calling rather
than merely an emotion or a job, and the steady
support of the community of faith around them.
Religious faith is not a purely emotional exercise or
mere intellectual assent to a series of propositions. It is
instead living and active, necessarily engaging the
hands along with the head and heart. For that reason,
people of faith have led the charge in caring for
vulnerable children in America for nearly three
hundred years. They view it as a calling, obligation,
5
and ministry, and not merely as an altruistic or “feelgood” social service. These religious beliefs both
motivate people of faith to engage in child welfare work
and inform the way in which they carry it out.
The government first seriously entered the field of
child welfare in the 1930s. And until recently,
governments and faith-based organizations have
cooperated to care and serve vulnerable families and
children. Recently, however, the City of Philadelphia
(and other like-minded governments) have declared an
end to that era of cooperation. They have given faithbased agencies two choices: Abandon the field of caring
for children, or abandon some of the very beliefs about
faith, family, and ministry that motivate them to serve
and which make those organizations uniquely effective.
That choice infringes on religious exercise. And either
option will visit devastating consequences on society’s
most vulnerable children and the families who are
eager to give them stable homes.
But the Court may chart a third course in the
cooperative spirit that reflects the best aspects of our
pluralistic society—and the First Amendment compels
it: Preserve for people of faith the right to exercise their
beliefs by caring for children without giving up the very
beliefs that move them to action.
This is a case about exclusion and harm. The City of
Philadelphia has excluded Catholic Social Services
(CSS) from providing home-study services based on
their religious views of marriage. If such exclusion is
upheld, then religious agencies will be excluded from
their historical and present role as partners to
government in service to vulnerable children and
6
families. Indeed, if the City’s action is upheld, religious
persons may be excluded from being adoptive or foster
parents, due to their religious views of marriage.
Exclusions like the City’s do harm vulnerable
children and families, and will continue to do so. The
child welfare system—and the families it
serves—depends on the voluntary participation of
agencies and persons to do most of the difficult work of
caring for vulnerable and traumatized children and
families. Many of those agencies and individuals are
animated by deep religious convictions; excluding them
will also send a clear message of government stigma
and disapproval to religious persons. On the other
hand, sustaining the role of religious agencies and
persons will not in any way exclude LGBT persons
from participating as foster or adoptive parents, nor in
any way exclude the many agencies that facilitate their
participation. Disagreements on marriage and religion
should not be used as a wedge to prevent us from
working together as a society to assist vulnerable
children.
7
ARGUMENT
I.
Religious foster and adoption agencies are
motivated by comprehensive religious
beliefs about the nature of families.
The First Amendment protects both private
religious beliefs and the public expression of those
beliefs. Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 523 (1993) (“The principle
that government may not enact laws that suppress
religious belief or practice is so well understood that
few violations are recorded in our opinions.”) (emphasis
added). And for good reason; thinkers ranging from
theologians4 to business consultants5 agree that a
satisfying life or an effective organization will combine
intellectual conviction, passion, and action (i.e. head,
heart, and hands).
For hundreds of organizations across the country,
caring for vulnerable children is a ministry, calling,
and command from God.6 There is robust debate among
4
Dennis P. Hollinger, Head, Heart and Hands: Bringing Together
Christian Thought, Passion and Action (2005).
5
Jim Hemerling, Julie Kilmann, and Dave Matthews, The Head,
Heart, and Hands of Transformation, The Boston Consulting
Group (November 2018), https://image-src.bcg.com/Images/BCGThe-Head-Heart-and-Hands-of-Transformation-Nov2018%20%281%29_tcm9-206341.pdf.
6
Take for example the mission statements of amici:
The CALL: “To educate, equip and encourage the Christian
community to provide a future and a hope for children in foster
care in Arkansas. https://thecallinarkansas.org/about-us/missionvision/
8
different faiths and denominations about the proper
theological foundations for adoption and foster care.7 It
would come as no surprise that Baptists, Catholics,
Mormons, Muslims, and Jews might have different
bases for engaging in child welfare, given their unique
religious traditions and sources of authority. But
despite those differences, all religious child welfare
organizations believe that their mission is a lived
expression of religious belief.
Religious conviction permeates the entire existence
of a faith-based child welfare organization and informs
all of its activities. For example, religious faith forms
the basis on which an organization like FaithBridge
appeals to the potential foster families it recruits every
year.8 Religious conviction inspires many people to
Lifeline: “The mission of Lifeline Children’s Services is to equip the
Body of Christ to manifest the gospel to vulnerable children.”
https://lifelinechild.org/what-we-believe/
FaithBridge: “Our mission is to mobilize, organize, and equip local
churches to solve their community’s foster care crisis.”
https://www.faithbridgefostercare.org/about/our-vision-andmission/
7
There is even disagreement among amici on this point. See, e.g.,
David M. Smolin, Of Orphans and Adoption, Parents and the Poor,
Exploitation and Rescue: A Scriptural and Theological Critique of
the Evangelical Christian Adoption and Orphan Care Movement,
8 Regent J. Int’l L. 267 (2012); Elizabeth Kirk, A Mother’s Day
Reflection: Don’t Be Afraid of Adoption, The Leaven (May 12, 2017)
https://perma.cc/KCT8-CT89.
8
As FaithBridge explains, “We believe the answer to solving the
foster care crisis is the church. This is why we partner with local
churches. A Christ-centered foster care ministry not only allows
churches to care for vulnerable children and their families but also
provides a way to support foster families and involve the local
9
volunteer or make financial contributions to support
the work of faith-based organizations. Such charity
relieves the government and child welfare systems of
some of the enormous financial burden of training
families and caring for vulnerable children. And
religiously informed beliefs about children and family
life motivate the faith communities that rally to
support foster and adoptive families.
It is important here to emphasize that these
religious agencies are not motivated by a generic faith,
but by specific religious histories and traditions that
are embodied in their work. There are (at least) two
consequences of this. First, it is important to be
mindful of the reality that the work of these agencies
on behalf of vulnerable children is the public
expression of people of faith, inspired by specific,
shared religious traditions. In other words, the child
welfare organization, the potential foster families they
work with, and the community set up around those
families work effectively together to promote their
common mission, in part because they are aligned on
and inspired by basic matters of belief. They share
commitments such as the nature of God, how God
should be worshipped, and the manner in which God
should be served through ministry to one’s fellow
human beings. Thus, while most faith-based agencies
serve those of any and all (or no) faith tradition,
unsurprisingly, they will hire employees, recruit
volunteers, or partner with families and faith
communities that share their particular religious
c h u r c h a n d c o m m u n i t y i n m e e t i ng t h e n e e d . ”
https://www.faithbridgefostercare.org/about/why-faithbridge/.
10
convictions (usually embodied in a basic statement of
faith).9
Second, every system of belief—whether religious,
atheistic, or secular—contains some kind of
philosophical understanding of the nature of the
human person and human sexuality. In the child
welfare system, this is manifest in reality that every
organization, whether secular or religious, agrees that
children need and deserve healthy, stable families. In
our pluralistic society, there are a variety of beliefs
(again, both religious and secular) about what
conditions and family structures make for a healthy,
stable family. For example, the belief that children
flourish best with both a mother and a father is not a
negative discriminatory principle, but rather an
expression of religious understanding about the very
nature of the family and the resultant rights of the
child.10 Therefore, unsurprisingly, many people of faith
have religiously informed views on such matters, and
those views are embodied in the child welfare work
that they do.
9
It is true that some faith-based organizations will partner with
volunteers or families outside the organization’s particular
religious tradition. But it is not a state government’s place to
dictate whether an organization must do so.
10
See, e.g., Pope Francis, Address to Humanum: An Interreligious
Dialogue on the Complementarity of Man and Woman, (Nov. 17,
2014) (“The family is the foundation of co-existence and a remedy
against social fragmentation. Children have a right to grow up in
a family with a father and a mother capable of creating a suitable
environment for the child’s development and emotional maturity.”)
Complete text of the address is available at https://perma.cc/9HAAFPS2.
11
Everyone, religious and non-religious alike, would
agree that children deserve healthy, stable families.
But there are a variety of beliefs about what makes for
a healthy, stable family. And unsurprisingly, many
people of faith have religiously informed views on the
matter.
II.
Faith-based agencies have long played an
indispensable role in caring for vulnerable
children.
Motivated by a sincere faith and sense of calling,
religious groups have served as the backbone of
adoption and foster care since our country’s origins. For
the last three centuries, private, predominately faithbased organizations shouldered the load of caring for
vulnerable children.
A. Faith-based agencies pioneered the field
of care for vulnerable children before
state and local governments were
involved.
In 1729, a group of Ursuline nuns founded the first
orphanage in North America. David Gates, History of
the Orphanage, Newsweek (Dec. 11, 1994, 7:00 PM)
https://perma.cc/C9XA-B28R. Lutherans founded the
first orphan asylum in the British colonies in 1738, in
Georgia’s Ebenezer colony. Timothy A. Hacsi, Second
Home: Orphan Asylums and Poor Families in America
17-18 (1997). Moved by a visit to the Ebenezer
orphanage, Methodist preacher George Whitfield
opened a home in Bethesda, Georgia. Id. Between 1790
and 1800, private (often religious) associations opened
orphanages in New York City, Philadelphia, Baltimore,
12
and Boston. Only Charleston, South Carolina operated
a public orphanage. Id. Faith communities expanded
their efforts in subsequent years. “By 1830, there were
over thirty institutions for dependent children in the
United States, almost all of which were either
Protestant or Catholic. Id., at 19. The first Jewish
association caring for dependent children emerged in
1822. Id., at 25.
Throughout early American history, faith-based
organizations responded to tragedies by opening their
arms to orphaned and dependent children. A bad
winter in 1829 prompted a Catholic priest to open a
new orphanage in Philadelphia. Id., at 24. Cholera
outbreaks across the country led to new orphan
asylums throughout the 1840s and 1850s. Id.
In 1853, a Methodist minister fueled the movement
to place displaced children with loving families rather
than in orphanages, becoming the “father of the
modern foster care movement.” Charles Loring Brace,
New World Encyclopedia. Throughout the latter half of
the 1800s, private agencies—overwhelmingly
religious—continued to lead the way in caring for
America’s dependent children. Hacsi, supra, at 27.
B. Faith-based agencies remained effective
partners after state and local
governments entered the field of child
welfare.
State and local governments entered the field of
child welfare after the Civil War, creating up a few
county- and state-run asylums. Hacsi, supra, at 27. But
government involvement largely consisted of providing
13
funding to private (still predominately religious)
orphanages and institutions. Id., at 31-34.
The federal government authorized the first federal
grants for child welfare services in the Social Security
Act of 1935. States responded by setting up their own
child welfare agencies. Kasia Murray & Sarah
Gesiriech, A Brief Legislative History of the Child
Welfare System, Pew Charitable Trusts. But faithbased groups remained at forefront of child welfare.
While orphanages declined in the wake of the 1935 Act,
and because of evolving understandings of the best
environment for children, many organizations shifted
to foster care or to specialized care for children with
particular health or behavioral needs. Hacsi, supra, at
47-48.
The modern foster care system finally began to take
shape in light of three developments in the 1960s.
First, amendments to the Social Security Act in 1961
codified reimbursements to state and local
governments for foster care expenditures. Susan Vivian
Mangold, Protection, Privatization, and Profit in the
Foster Care System, 60 Ohio St. L.J. 1295, 1307 (1999).
Second, all states enacted reporting laws requiring
certain professionals to report suspected child abuse;
states also set up regulatory regimes for investigating
reports and protecting the abused children. Id. at 1308.
And third, further amendments to the Social Security
Act allowed states to contract with private nonprofit
agencies for foster care services. Id., at 1309. State and
local governments largely responded by contracting
with the very same private (usually religious)
organizations that were already caring for children. Id.
14
As explained below, the close partnership between
faith-based agencies and local governments continues
to this day. Kelsi Brown Corkran, Principal-Agent
Obstacles to Foster Care Contracting, 2 J.L. Econ. &
Pol’y 29, 31-32 (2006) (“Although some states have
created public agencies that directly place children in
foster homes and employ social workers to monitor
their care, most continue to contract these services out
to private nonprofit organizations.”)
III.
In order to carry out the mission of caring
for vulnerable children, faith-based
organizations must partner with state and
local governments.
A. State and local governments are the
exclusive gatekeepers of the child
welfare system.
While state and local governments are relative
latecomers to child welfare work, see § II, supra , they
are now the gatekeepers. Foster care is unique within
the social safety net in that regard. Private
organizations can operate everything from schools to
soup kitchens, and homeless shelters to hospitals
without contracting with the government. But there is
no such thing as a “private” foster care system; private
agencies must operate in cooperation (typically under
a contract) with a state or local department of family
services. See Hannah Roman, Foster Parenting As
Work, 27 Yale J.L. & Feminism 179, 186-189 (2016);
Mangold, supra, at 1313. If a foster care organization
is barred from working with or contracting with a local
government, then it is excluded from the foster care
system altogether.
15
B. In order to engage with the child
welfare system at any level, an
organization must cooperate with state
and local authorities.
Amici represent different levels of engagement with
the foster care system. FaithBridge and Lifeline are
full-service or child placing agencies: they recruit foster
families, they are authorized to conduct home studies
and assist prospective foster families to obtain licenses,
they provide state-mandated pre-service and
continuing education for foster families, and they are
authorized to place children who enter the foster care
system. The CALL is a bridge organization: like
FaithBridge and Lifeline, it recruits foster families and
provides state-mandated pre-service and continuing
education, but it does not conduct home studies or
place children. But both full-service and bridge
organizations must interact with—and cooperate
with—state authorities at every stage of their work.
A full-service or child placing agency must itself be
licensed by the state.11 Full service agencies may in
turn license foster families, subject to state guidelines
and state approval.12 That process uniformly includes
an intensive home study to assess whether the
prospective foster family can provide a safe and stable
environment for vulnerable children. Foster families
11
Ala. Code § 38-7-4; Ark. Code Ann. § 9-28-407; Ga. Code Ann.
§ 49-5-12. Amici rely on the laws of the states where they operate,
which are similar to other state laws nationwide, and are also
similar to the system in Pennsylvania.
12
Ala. Code § 38-7-4; Code Ark. R. 016.15.2-210; Ga. Code Ann.
§ 49-5-12.
16
must complete pre-service training, including first aid
and CPR certification, as well as annual in-service
training (typically between 15 and 30 hours per year).13
Foster care agencies and foster families partner with
the state long before the family receives a foster child.
C. Amid the diverse ways faith-based
organizations work with state and local
governments, the intensive nature of the
home study process for prospective
foster parents is a national constant.
A home study is an intensive lifestyle assessment.14
By its nature, a home study requires accounting for
how the agency defines a healthy environment. To be
sure, state governments provide guidelines on
minimum qualifications for foster families and required
components of a home study.15 But some components
are irreducibly subjective.
To qualify to foster in Arkansas, the foster parents
“shall be physically, mentally, and emotionally capable
of caring for children,” and “the stability of the foster
family shall be evaluated and determined to be
appropriate.” Code Ark. R. 016.15.2-206. To that end,
Arkansas directs child placement agencies to assess a
13
See generally Ala. Admin. Code 660-5-29-.02, .07; Code Ark. R.
016.15.2-207, -210; Ga. Comp. R. & Regs. 290-2-5-.13.
14
Amici describe here the home study process in Arkansas,
Alabama, and Georgia. These descriptions are consistent with
home study regimes across the country, including Pennsylvania’s.
See Petitioners’ Br., at 6-8.
15
Ala. Admin. Code 660-5-29-.02, .07; Code Ark. R. 016.15.2-206,
-207, -210; Ga. Comp. R. & Regs. 290-2-5-.13.
17
potential family’s motivations for fostering, the parents’
educational attainment and parenting classes
attended, child rearing practices (including “behavior
guidance practices, how they show affection, how they
handle stress, allowance, chores, and homework”),
social history, religious interests, social organization,
and family roles. Code Ark. R. 016.15.2-207. The child
placement agency is then directed to “Evaluate the
family’s situation and ability to provide for a child
based on the information obtained during the home
study.” Id. At each step, a child placement agency
cannot avoid measuring the potential foster family
against the agency’s convictions about a healthy home
environment for a child, and indeed such subjective
assessments are required by the statutory and
regulatory scheme.
Georgia likewise requires subjective evaluations as
part of the home study process. A child placing agency
must evaluate “family interaction patterns,” “parenting
knowledge, attitudes, and skills,” “current child-rearing
practices,” “emotional and mental health status of each
member of the prospective foster family,” “anticipated
adjustment of each foster family member to a foster
child,” “willingness to cooperate with the placement
agency,” the support network available to the foster
family, and “religion.” Ga. Comp. R. & Regs. 290-2-5.13. And in Georgia, when the state licenses a child
placement agency, it approves “all foster homes
approved, supervised, and used by the licensed childplacing agency as part of its work,” Ga. Code Ann. § 495-12(b), so the child placing agency assumes
responsibility for the families it studies and approves.
Needless to say, the state should not force a child
18
placement agency to approve or be responsible for any
foster family that the agency does not believe in good
faith represents the best home environment for a child.
Every state has some objective requirements for
foster parents. Foster parents must be adults, for
example. Foster parents should not have a history of
committing crimes against children. But as the
foregoing statutory and administrative provisions
demonstrate, ultimately every child-placing agency
must also make a subjective assessment of the foster
family’s fitness. Different agencies, motivated by
different traditions and embodying diverse
understandings of human nature, will of course have
different conclusions about the best environments for
children. The fact that most states contract with a
variety of child placement agencies demonstrates that
this cooperative, multiplicity-based approach makes for
a robust child welfare system. But when the
government, in its role as gatekeeper to the child
welfare system, requires faith-based agencies to
suppress their deeply held religious convictions about
family life as the price of carrying out a public
expression of their religious convictions about family
life, the government abandons its historical, successful
partnership in favor of a one-size-fits-all monopoly.
IV.
Faith-based agencies play a unique and
irreplaceable role in the foster care and
adoption system.
Just as faith-based foster care agencies cannot
operate without working with state governments, state
governments could not operate their foster care
systems effectively without faith-based organizations.
19
Faith-based agencies are prolific recruiters of foster
families, they provide the essential community support
that allows families to foster longer and more
effectively, and they play an innovative and
indispensable role in family reunification efforts.
A. Faith-based agencies are uniquely
effective in recruiting and sustaining
foster families.
Across the country, faith-based organizations are
the most effective recruiters of new foster families. For
example, since its founding in 2007, The CALL has
recruited and trained two-thirds of all non-kinship
foster families in Arkansas. Families recruited or
trained by The CALL have adopted more than 1500
children and cared for 18,000. The CALL has been
particularly effective in recruiting families in rural
counties in Arkansas.
The Deputy Director of the Arkansas Division of
Children and Family Services (“DCFS”) described it
this way: before The CALL began recruiting families in
Lonoke County, a social worker who removed a child
“might be in [the] office for seven hours trying to find
a placement. Then you might end up with that child in
an emergency shelter or a placement just for the night,
and you start all over the next day.” But thanks to The
CALL’s efforts, the Lonoke DCFS office can now find
placements “within an hour.” Benjamin Hardy, In
Arkansas, One Faith-Based Group Recruits Almost
Half of Foster Homes, The Chronicle of Social Change
(Nov. 18, 2017) https://perma.cc/BJF9-TJDP. And in
Cleburne County, Arkansas, The CALL’s efforts led to
20
a five-fold increase in open foster homes between 2009
and 2017. Id.
In Georgia, FaithBridge families cared for 463
children in foster care—a 12% increase over the
previous year. Id.16
Faith-based organizations are prolific recruiters
precisely because of their religious convictions.
Religious faith is often a strong motivation to become
a foster parent. Michael Howell-Moroney, The
Empirical Ties between Religious Motivation and
Altruism in Foster Parents: Implications for FaithBased Initiatives in Foster Care and Adoption,
Religions, Vol. 5, No. 3, at 720-737 (2014). Indeed, in
one study, more than 90% of individuals who were
contacted by a faith-based child welfare organization
reported that after that contact, they were “highly
aware” of a religious mandate to care for orphans and
of the need for foster and adoptive families in their
community. 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, 176 (2013).
More than a third of foster families recruited by The
CALL report that the likely would not have become
foster parents but for their exposure to The CALL’s
faith-based call to foster, while another forty percent
16
While much of life ground to a halt during the COVID-19
pandemic, organizations like amici are undeterred. In just the last
threee months, 124 people have signed up for FaithBridge’s online
training sessions—up from 84 during the same period last year.
Emil Moffat, Alpharetta Foster Care Agency Sees More Families
Signing Up For Online Training (May 21, 2020)
https://perma.cc/9M3X-UD3R.
21
report that they were on the fence about fostering
before exposure to The CALL’s programing. Id., at 177.
Faith-based agencies do not rely on a religious
message alone. They also partner with local faith
communities, providing the critical support that
prospective foster families need to begin
fostering—support that the government cannot easily
replicate. To take one example, Lifeline partners with
Homewood Church of Christ in Homewood, Alabama to
recruit and support its foster families. Earlier this
year, the church approached Lifeline with a vision to
help prepare bedrooms in the homes of families that
were in the process of becoming licensed foster parents.
Lifeline connected the church with four families that
were undergoing foster care training with Lifeline. The
families asked for everything ranging from a single
item to an entire room, and the church rallied to supply
their needs. In another case, a prospective foster family
had to halt their licensing process because they could
not afford to put a fence around the pool in their back
yard. Lifeline reached out to the family’s home
church—another Lifeline church partner—and the
church rallied to help the family erect the fence and
continue with foster care licensing.
Faith-based agencies are effective recruiters
precisely because they are faith based. Without this
fundamental, motivational component, faith-based
agencies lose their sine qua non. The governmental
body that would require faith-based agencies to
abandon their most fundamental commitments will
jeopardize a health stream of potential foster families.
22
And it will do so to the detriment of the children the
government purports to serve.
B. Faith-based agencies provide critical
community and support for foster
families.
Opening new homes is only part of the battle. One
quarter of first-time foster homes close within four
months of opening. Fred Wulczyn, et al., The Dynamics
of Foster Home Recruitment and Retention 9, The
Center for State Child Welfare Data (Sept. 2018)
https://perma.cc/Z5UR-CRAG. Half close within nine
months, and three-quarters close within two years. Id.
Foster parents often stop fostering because they do not
feel included in decision-making about the foster child’s
life, a lack of communication or other frustration with
state agencies, or a lack of formal peer-network
support. CHAMPS Policy Playbook 2nd Edition, 19-26
(Jan. 2019) https://playbook.fosteringchamps.org/wpcontent/uploads/2019/01/champs-playbook.pdf.
But faith-based organizations are uniquely effective
in keeping foster families open. Families who hear
about fostering through a church or religious
organization foster for years longer than other foster
parents. Mary Ellen Cox, Cheryl Buehler, & John
Orme, Recruitment and Foster Family Service, J. Soc.
& Soc. Welfare Vol. 29, No. 3, 166-168 (2002). This is
because faith-based agencies are adept at stepping in
to meet the needs that would otherwise drive families
out of foster care.
Caring for vulnerable children is a months, years, or
life-long commitment, and it is a chaotic and difficult
23
endeavor. Nearly 60% of children in foster care are
school-age or older. Adoption and Foster Care Analysis
and Reporting System (AFCARS) FY 2018 data, U.S.
Department of Health & Human Services. Most have
been in foster care for a year or longer. Id. Foster
situations often involve sibling groups or traumatized
children with significant behavioral problems. In short,
foster care is not simply a matter of pouring love on
cuddly newborns—foster care often involves caring for
children with extraordinary emotional, psychological,
physical, medical, and social needs.
For that reason, fostering simply cannot be
sustained without support. Foster families need
community—something that faith-based agencies are
uniquely positioned to provide. Organizations like The
CALL, Lifeline, and FaithBridge intentionally recruit
communities to surround foster families. They often
recruit and partner with a church—an entire faith
community—before recruiting individual families. See
n.6, supra. State governments are not designed to
recruit or forge communities. Despite their best
intentions, there is no government agency designed to
walk with a family when a traumatized elementary
school kid urinates on the floor in the study.
Faith-based organizations aggressively recruit and
train those who will provide wrap around services to
foster families. What does this look like? In amici’s
experience, whole churches—organized and mobilized
by faith-based agencies—cut grass, clean laundry,
provide meals, babysit, and transport children to case
management visits, physician appointments, and
therapy sessions in order to support foster families. In
24
amici’s experience, the cliché is true: it takes a village
to raise a [foster] child. Faith-based agencies,
themselves corporate expressions of shared religious
belief, are designed to create and sustain the village.
C. Faith-based agencies are effective
partners in family reunification plans.
Many of the faith-based organizations targeted by
exclusionary policies like the City of Philadelphia’s
share the belief that the optimal environment for a
child is to live with his or her married, biological
parents. And as a product of that very commitment,
many faith-based organizations are innovative leaders
in family reunification efforts.
Take Lifeline as one example. Lifeline does not
market itself as a foster care agency. Rather, Lifeline
pursues family restoration, with foster care as one of
several ministries oriented toward that goal. Through
its “Families Count” ministry, Lifeline offers parent
education classes designed to meet the standards for
state-approved, court-mandated parenting classes.
Families Count, Lifeline Children’s Services
https://lifelinechild.org/families-count/. Lifeline trains
churches to mentor and care for parents who are
working through court-ordered reunification plans, and
to intervene with parents who are at risk of having
their children removed.
The U.S. Department of Health and Human
Services recently highlighted FaithBridge as an
exemplar of best practices for utilizing foster care as a
support for birth families. Foster Care as a Support to
Families, U.S. Department of Health & Human
25
Services (Apr. 29, 2020) https://www.acf.hhs.gov/sites/
default/files/cb/im2006.pdf. FaithBridge believes that
it is in the best interest of children for their foster
families to partner with their birth parents. Id. So in
order to be licensed by FaithBridge, a foster family is
expected to be willing to work alongside birth families.
Id., at 16. FaithBridge teaches foster families to
understand the importance of the parent-child
relationship despite the reasons for a child’s removal,
and FaithBridge asks its foster families to recognize
and respect the ongoing role of the birth parents in the
child’s life. Id. FaithBridge also believes that both
foster and birth families thrive when surrounded by a
community of support. Id. To that end, FaithBridge
encourages every foster family to join or form a
community of care consisting—often through a local
church—that will support the foster family, the birth
parents, and the children in foster care. Id. The result?
“The agency’s data indicate that reunification rates
improved significantly when resource [foster] families
worked closely with families and nearly 25% of families
maintained a relationship post-reunification.” Id.
V.
Excluding faith-based agencies concretely
harms vulnerable children and the families
who care for them.
State child welfare systems could not operate
effectively without the support and resources of faithbased organizations. Faith-based organizations cannot
live out their ministry calling to care for children
without cooperating with state governments. Faithbased organizations are uniquely effective partners,
26
precisely because of their religious convictions about
children and families.
In this case, the City of Philadelphia (and other
local governments) want to force faith-based agencies
into an untenable choice: give up their religiously
motivated ministry to vulnerable children, or give up
the religious convictions that make them effective
organizations in the first place. Unsurprisingly, people
of faith are not willing to give up their convictions at
the behest of the state—and the First Amendment
guarantees that they do not have to do so. But if the
City and others successfully exclude faith-based
organizations from the child welfare system, the
consequences will be devastating for both vulnerable
children and people of faith.
A. Excluding faith-based organizations will
lead to fewer foster homes, exacerbating
an existing crisis.
As explained in § IV.A-B, supra, many families
would not begin fostering or continue to foster without
the partnership of faith-based organizations.
Accordingly, it should be self-evident that excluding
faith-based organizations will lead to fewer foster
homes. But one need not rely on syllogisms alone. In
2011, Illinois enacted its “Religious Freedom Protection
and Civil Union Act,” which effectively prevented the
state from partnering with faith-based agencies who
hold traditional beliefs on marriage.17 Between 2012
17
Tim Townsend, Catholic Charities in Springfield, Ill., transfers
its foster care, St. Louis Post-Dispatch (Jan. 10, 2012)
https://perma.cc/G6JA-WGQK.
27
and 2017, Illinois lost 1547 foster homes—more than
any other state reporting data during that period.
Foster Care Housing Crisis, The Chronicle of Social
Change, Appendix A at 13-14 https://perma.cc/9SK8WFXA.
B. Excluding faith-based organizations will
harm foster children of all religious
backgrounds.
Many states have “religious matching” statutes that
direct foster care agencies to make a reasonable effort
to place a child with a foster family of the same
religious faith as the legal parents. Kelsi Brown
Corkran, Free Exercise in Foster Care: Defining the
Scope of Religious Rights for Foster Children and Their
Families, 72 U. Chi. L. Rev. 325, 327 (2005) (collecting
statutes). In states without matching statutes, state
agencies still typically consider religious affiliation as
part of foster care placement. Id.
It is right and proper for local governments to make
a good faith effort to place children in homes that share
their (or their parents’) religious faith. Both foster
children and their biological parents have Free
Exercise rights that the government is obliged to
respect. To take one example, the Orthodox Jewish
faith maintains a number of particular religious
practices that distinguish Orthodox Judaism from
other faiths, including other Jewish traditions. A state
should not casually disregard a Jewish foster child’s
28
faith (or the faith of the family from which he comes)
by making no effort to find a compatible foster family.18
Further, removing a child from her home is
traumatic enough without placing her in an alien faith
community. It would be highly improper to remove an
Orthodox Jewish child from her home and place her
with a Mormon foster family for long term care (or vice
versa)—not because Mormons (or Orthodox Jews) are
incapable of being good foster parents (quite the
opposite), but because it would represent a tremendous
shift in religious faith and practices that neither the
foster child nor the foster family can reasonably be
expected to navigate.19 Having already ripped a child
away from her family, it would be too much to also
remove the patterns, practices, rituals, faith—even
dietary considerations—that characterize her daily life.
By ignoring religious considerations in foster care
placement, the government may also create immense,
unnecessary obstacles to eventual family reunification.
It is not unusual for a child to spend years in foster
care before being reunited with his or her birth
family.20 A child who is separated from his parents’
18
If a state is obliged to provide kosher and halal meals to its
Jewish and Muslim prison inmates, then surely it cannot ignore
the religious dietary needs of its Jewish and Muslim foster
children by placing them with foster families that cannot or will
not meet those needs.
19
It is hard to imagine that the Free Exercise and Establishment
clauses teach that religion is simply immaterial to a child’s
upbringing.
20
The U.S. Department of Health & Human Services collects data
on the timeline to reunification (i.e. the length of time between
29
faith (and his own faith) for that long may very well be
alienated from the faith by the time he is reunited with
his birth family.
Faith-based organizations are indispensable if a
state is going to meaningfully respect the religious
beliefs of the children and families it serves. Faithbased agencies are more likely to recruit foster families
of the same faith, see § IV.A., supra, which gives a state
government a viable pool of potential placements. And
faith-based agencies streamline the process of finding
a religiously compatible placement; if a state agency
must place a Jewish child into a foster home, it is an
order of magnitude more efficient to first call the state’s
Jewish adoption and foster agency to find a placement,
rather than to contact each of its potentially dozens of
organizational partners and ask them to each comb
through their list of families to find a Jewish home.21
placing a child in foster care and returning that child to his or her
birth family) in state foster care systems.
https://cwoutcomes.acf.hhs.gov/cwodatasite/fourOne/index. In
Georgia, 41% of reunifications in 2017 took more than a year (i.e.,
a child spent more than 12 months in foster care before returning
home). In Pennsylvania, nearly 30% of 2017 reunifications
involved more than a year in foster care. And in Illinois, 72% of
family reunifications in 2017 took more than a year, and 30% took
more than two years.
21
Amicus Coalition for Jewish Values explains that Jewish foster
and adoption agencies are essential to providing foster care
placements for Jewish children. As amicus explains, an Orthodox
Jewish family will likely serve only Orthodox Jewish children,
recognizing that the cultural and religious shock would be
overwhelming and unhelpful for a child of any other faith—it is no
small matter to keep a kosher diet or attend a Synagogue. As such,
an Orthodox Jewish family seeking to serve as a foster family will
likely work with an Orthodox Jewish foster care agency, or not
30
C. Excluding faith-based organizations will
cut off continuity of care and delay
permanence for vulnerable children.
Entering the foster care system is a traumatic
experience for a child. There are no positive reasons to
be in foster care: it involves a state determination that
the child has been a victim of abuse or neglect and that
the home environment is unsafe or unsuitable. The
child is then taken out of his home environment and
typically placed with strangers for an indeterminate
length of time. Sibling groups can be split across
multiple homes. Children are then re-traumatized by
the often unstable nature of foster care placements
(instability that is increased if foster families do not
have adequate support).
Children cannot begin to heal without a stable
home. Children who experience multiple foster care
placements fall behind academically. Jessica Lahey,
Every Time Foster Kids Move, They Lose Months of
Academic Progress, The Atlantic (Feb. 28, 2014). They
are at an increased risk of behavioral problems. David
Rubin, Amanda O’Reilly, & Xianqun Laun, The Impact
of Placement Stability on Behavior Well-Being for
Children in Foster Care, Pediatrics (Feb. 2007).
Unfortunately, many foster children do not find
stable homes. The Department of Health & Human
Services defines “placement stability” as having two or
serve at all. If state and local governments refuse to work with
Orthodox Jewish foster care agencies, it is unlikely that the state
will have available placements for Orthodox Jewish children in
foster care.
31
fewer placements in a single foster care episode. See
Child Welfare Outcomes 2016: Report to Congress, U.S.
Department of Health & Human Services
https://www.acf.hhs.gov/sites/default/files/cb/cwo2016
.pdf. In 2016 (the HHS Report), 84% of children who
were in foster care for less than twelve months had
placement stability. Id., at 46. That number dropped
the longer a child remained in foster care; only 39% of
children who had been in foster care for two years or
longer had achieved placement stability. Id.
In contrast 99.13% of children placed in FaithBridge
homes last year found stability in just one
placement—well exceeding the national average.
FaithBridge Foster Care 2019 Annual Report
https://f7h2s3c3.stackpathcdn.com/wp-content/uploads/
2020/05/2019-FaithbridgeAnnualReport.pdf. And as
outlined in § IV.B, supra, families recruited by faithbased agencies foster longer than other foster families,
further promoting stable placements. If state and local
governments exclude faith-based caregivers, children
will lose out on their best opportunity to find long-term
stability.
VI.
Excluding faith-based entities will
marginalize people of faith in other sectors
as well.
The case under consideration poses two important
questions for the Court and for society as a whole:
First, may an individual or organization disagree with
the government’s orthodoxy on family structure and
still serve children? The Establishment and Free
Exercise Clauses guarantee that a person does not
32
have to agree with the government on matters of
religious conviction in order to participate in public life.
The City of Philadelphia wants to exclude Catholic
Social Services from the foster care system because the
City and the Archdiocese of Philadelphia have different
positions on same-sex marriage. If the City declares
that the Catholic Church is unfit to find foster families
because of its views on marriage, it unavoidably sends
the message that families who share that same view of
marriage are unfit to be foster families. The
government cannot send the message that certain
religious views are unwelcome by maintaining a
passive monument. McCreary Cty., Ky. v. Am. Civil
Liberties Union of Ky., 545 U.S. 844 (2005). Surely it
cannot send the message that certain religious views
are unwelcome by stating outright, through its express
motivation for excluding CSS from child welfare.
The second question is whether society can
accommodate people with different convictions about
important issues, and still labor together for the good
of vulnerable children (or for any other social welfare
cause). Since our nation’s inception and until recently,
the answer was a resounding yes. That successful,
cooperative relationship turns out to have been
unexpectedly fragile, as the City of Philadelphia ended
it upon the slimmest of bases: a newspaper report that
CSS would not perform home studies for same-sex
couples if asked (even though there was no evidence to
indicate that same-sex couples have ever asked to work
with the Catholic Church).
Amici acknowledge that until recent years, most
doors were closed to LGBT individuals who wish to
33
foster or adopt. Those doors are now open across the
country, in every state. Is it necessary to now shut the
doors on faith-based organizations?
In 2015, this Court affirmed that “this view [that
marriage is by its nature a gender-differentiated union
of man and woman] long has been held and continues
to be held in good faith by reasonable and sincere
people here and throughout the world.” Obergefell v.
Hodges, 135 S. Ct. 2584, 2594 (2015). And “neither they
nor their beliefs are disparaged” by the creation of a
constitutional right to same-sex marriage—or so the
Court said. Id., at 2604. But now five years later, the
City of Philadelphia deems those formerly “reasonable
and sincere people” so odious that merely associating
with them is an affront to human dignity for the LGBT
community. So much so that the City must choose one
side and completely disassociate from the other. In do
so, the City charted precisely the course Justice Scalia
warned against: “Hate your neighbor or come with us.”
United States v. Windsor, 570 U.S. 744, 802 (2013)
(Scalia, J., dissenting). The Court should not endorse
that path.
No one is served by closing doors to people and
agencies who, inspired by and informed by their faith,
have historically shouldered the burden of caring for
vulnerable children. Allowing the City of Philadelphia
to exclude Catholic Social Services from the child
welfare system sends an ominous message to all people
of faith serving in any social service ministry that
interacts with the state (whether it be education,
health care, prison ministry, or anti-poverty work): fall
in line, or get out of our way.
34
CONCLUSION
Faith-based organizations have carried the burden
of caring for vulnerable children for centuries, as an
expression of deep religious conviction. The judgment
below effectively means that the government may take
over the space created by people of faith (here, child
welfare), and then exclude them from the field
altogether if they do not bow to the government’s
orthodoxy on matters of faith. The judgment below
should be reversed.
Respectfully submitted,
PHILIP D. WILLIAMSON
Counsel of Record
SPENCER COWAN
TAFT STETTINIUS & HOLLISTER LLP
425 Walnut Street, Suite 1800
Cincinnati, Ohio 45202
(513) 381-2838
pwilliamson@taftlaw.com
scowan@taftlaw.com
Counsel for Amici Curiae
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.