Amicus Curiae Brief — Sharonell Fulton, et al., Petitioners v. City of Philadelphia, Pennsylvania, et al.
Supreme Court briefAug 19, 2020
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No. 19-123
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------SHARONELL FULTON, et al.,
Petitioners,
v.
CITY OF PHILADELPHIA, et al.,
Respondents.
---------------------------------♦--------------------------------On Writ Of Certiorari To The
United States Court Of Appeals
For The Third Circuit
---------------------------------♦--------------------------------BRIEF OF AMICI CURIAE SCHOLARS OF THE
CONSTITUTIONAL RIGHTS AND INTERESTS OF
CHILDREN IN SUPPORT OF RESPONDENTS
---------------------------------♦--------------------------------CATHERINE E. SMITH
Counsel of Record
UNIVERSITY OF DENVER
STURM COLLEGE OF LAW
2255 E. Evans Avenue
Denver, CO 80208
303.871.6180
csmith@law.du.edu
TANYA WASHINGTON HICKS
GEORGIA STATE UNIVERSITY
COLLEGE OF LAW
LAUREN FONTANA
UNIVERSITY OF COLORADO
DENVER
SCHOOL OF PUBLIC AFFAIRS
JESSICA DIXON WEAVER
SMU DEDMAN SCHOOL
OF LAW
CARY MARTIN SHELBY
WASHINGTON AND LEE
SCHOOL OF LAW
ANGELA ONWUACHI-WILLIG
BOSTON UNIVERSITY
SCHOOL OF LAW
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .................................
iii
INTERESTS OF AMICI CURIAE .......................
1
SUMMARY OF ARGUMENT ..............................
2
ARGUMENT ........................................................
4
I.
ALLOWING A GOVERNMENT CONTRACTOR TO CATEGORICALLY EXCLUDE SAME-SEX FOSTER PARENTS
FAILS TO SERVE THE BEST INTERESTS
OF CHILDREN ..........................................
6
A. Children’s Best Interests are Better
Served By Placement with Foster Families Than in Institutional Care Settings .....................................................
8
B. A Government Contractor’s Categorical
Exclusion Diminishes Access to Familial Placements, Harming All Children
in Foster Care and Disproportionately
Impacting “Special Needs” and LGBT
Children ............................................... 10
1. A Categorical Exclusion Harms All
Foster Children ............................... 12
2. A Categorical Exclusion Disproportionately Impacts “Special Needs”
Foster Youth .................................... 13
3. A Categorical Exclusion Disproportionately Harms and Stigmatizes
LGBT Foster Youth ......................... 15
ii
TABLE OF CONTENTS—Continued
Page
II.
Allowing the Exclusion of Same-Sex Couples Gives Impermissible Legal Effect to
Religious Beliefs at the Expense of Children in Contravention of Fourteenth
Amendment Values .................................... 19
A. Allowing the Exclusion Gives Impermissible Legal Effect to Stereotyping .......... 23
B. Allowing the Exclusion Gives Impermissible Legal Effect to Sex Discrimination ................................................... 26
C. Allowing the Exclusion Gives Impermissible Legal Effect to Sexual Orientation Discrimination .......................... 29
CONCLUSION..................................................... 33
iii
TABLE OF AUTHORITIES
Page
CASES
Bostock v. Clayton Cty., 140 S. Ct. 1731
(2020) ..................................................... 22, 27, 28, 29
Bowers v. Hardwick, 478 U.S. 186 (1986) ....... 26, 30, 31
Caban v. Mohammed, 441 U.S. 380 (1979) ................24
City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432 (1985) ............................................................ 1, 32
D.P. v. G.J.P., 146 A.3d 204 (Pa. 2016).................... 7, 11
D.R. v. Middle Bucks Area Vocational Tech. Sch.,
972 F.2d 1364 (3d Cir. 1992) .....................................6
In re Sweeney, 574 A.2d 690 (Pa. Super. Ct. 1990) .........7
J.E.B. v. Alabama, 511 U.S. 127 (1994) .......... 25, 26, 27
Latta v. Otter, 771 F.3d 456, 470 (9th Cir. 2014) ........29
Lawrence v. Texas, 539 U.S. 558 (2003)....1, 22, 26, 30, 31
Lindley v. Sullivan, 889 F.2d 124 (7th Cir. 1989) ........7
Loving v. Virginia, 388 U.S. 1 (1967) ..........................21
Nevada Dept. of Human Res. v. Hibbs, 538 U.S.
721 (2003) ................................................................23
Nicini v. Morra, 212 F.3d 798 (3d Cir. 2000) ................6
Obergefell v. Hodges, 135 S. Ct. 2584 (2015) ...... passim
Orr v. Orr, 440 U.S. 268, (1979) ..................................23
Palmore v. Sidoti, 466 U.S. 429 (1984) ............... passim
Romer v. Evans, 517 U.S. 620 (1996) ...................... 4, 30
Santosky v. Kramer, 455 US 745 (1982) ......................7
iv
TABLE OF AUTHORITIES—Continued
Page
Smith v. Org. of Foster Families for Equal. &
Reform, 431 U.S. 816 (1977) ......................................5
United States v. Windsor, 570 U.S. 744 (2013) ...........16
STATUTES
11 PA. STAT. AND CONS. STAT. ANN. § 2633 (West
2020) ..........................................................................7
42 U.S.C. § 2000e-2(a)(1) (2020) .................................27
42 U.S.C. §§ 671(a)(15), 673(b)(d), 675(5)(E) (2018).......... 7
55 Pa. Code §§ 3140.201–3140.210 (2020) ...................3
Phila. Code § 9-1106 (2016) ..........................................4
OTHER AUTHORITIES
Angela Onwuachi-Willig & Jacob WilligOnwuachi, A House Divided: The Invisibility
of the Multiracial Family, 44 Harv. C.R.-C.L.
231 (2009) ................................................................16
ANNIE E. CASEY FOUNDATION, LGBTQ IN CHILD
WELFARE: A SYSTEMATIC REVIEW OF THE LITERATURE (2016) ............................................................17
Anthony Michael Kreis, Policing the Painted
and the Powdered, 41 CARDOZA LAW REVIEW
399 (2019) ................................................................25
Barbara Bennett Woodhouse, Waiting for Loving: The Child’s Fundamental Right to Adoption, 34 CAP. U. L. REV. 297 (2005) ................... 12, 14
v
TABLE OF AUTHORITIES—Continued
Page
Carlos A. Ball, Lesbian and Gay Families: Gender Nonconformity and the Implications of
Difference, 31 CAP. U. L. REV. 691 (2003) ...............24
Catherine E. Smith, Equal Protection for Children of Gay and Lesbian Parents: Challenging
the Three Pillars of Exclusion—Legitimacy,
Dual-Gender Parenting, and Biology, 28 LAW
& INEQ. 307 (2010) ..................................................23
Catherine Smith, Obergefell’s Missed Opportunity, 79 L. & CONT. PROBS. 223 (2016) ..................5
Child Welfare, YOUTH.GOV, https://youth.gov/
youth-topics/lgbtq-youth/child-welfare (last
visited July 10, 2020) ...................................... 3, 6, 15
Children’s Bureau, U.S. Dep’t of Health & Human Servs, The AFCARS Report: Preliminary
FY 2016 Estimates as of Oct 20, 2017–No. 24
(2017) .......................................................................11
Children’s Bureau, U.S. Dep’t of Health & Human Servs., Child Welfare Outcomes 2016 Report to Congress (2016) ...........................................10
Children’s Bureau, U.S. Dep’t of Health & Human Servs., Trends in Foster Care and Adoption: FY 2009–FY 2018 (2019) ................................11
David Dodge, How Coronavirus Is Affecting Surrogacy, Foster Care and Adoption, N.Y. TIMES
(April 1, 2020) ..........................................................18
vi
TABLE OF AUTHORITIES—Continued
Page
DAVID M. BRODZINSKY & EVAN B. DONALDSON ADOPTION INST., EXPANDING
RESOURCES FOR CHILDREN III: RESEARCH-BASED BEST PRACTICES IN
ADOPTION BY GAYS AND LESBIANS 13
(2011) ............................................................. 9, 11, 14
DOROTHY ROBERTS, SHATTERED BONDS: THE
COLOR OF CHILD WELFARE 149 (2002) .....................13
Encouraging Adoption: Hearing Before the Subcomm. on Human Res. of the Comm. on Ways
and Means, 105th Cong. 112 (1997) .........................8
Erwin Chemerinsky, Chemerinsky: Gorsuch
Wrote His “Most Important Opinion’ in SCOTUS Ruling Protecting LGBTQ Workers, ABA
JOURNAL (July 1, 2020) ............................................22
EVAN B. DONALDSON ADOPTION INST., EXPANDING RESOURCES FOR WAITING
CHILDREN II: ELIMINATING LEGAL AND
PRACTICE BARRIERS TO GAY AND LESBIAN ADOPTION FROM FOSTER CARE 11
(2008) .........................................................................8
Gary J. Gates et al., Williams Inst., Adoption
and Foster Care by Gay and Lesbian Parents
in the United States (2007) .......................................9
Gary J. Gates, Williams Inst., LGBT Parenting
in the United States 1 (2013) ..................................13
vii
TABLE OF AUTHORITIES—Continued
Page
Gracie Bonds Staples, Why Surge in Foster Care
Placement Will Follow COVID-19 Pandemic,
ATLANTA JOURNAL-CONSTITUTION (April 7,
2020) ........................................................................18
Homelessness & Housing, YOUTH.GOV, https://
youth.gov/youth-topics/lgbtq-youth/homelessness
(last visited Aug 3, 2020) ........................................15
John Kelly, Projection: National Foster Care
Numbers Continue to Rise in 2017, IMPRINT,
(Nov. 2, 2017) ...........................................................11
Kerith J. Conron & Bianca D.M. Wilson, Williams Inst., LGBT Youth of Color Impacted by
the Child Welfare and Juvenile Justice Systems: A Research Agenda (June 2019) .............. 13, 16
Kyle C. Velte, Obergefell’s Expressive Promise, 6
HLRE 157 (2015) .....................................................16
Kyle C. Velte, Recovering the Race Analogy in
LGBTQ Religious Exemption Cases 42
CARDOZO L. REV ___ (forthcoming 2020).................21
LGBTQ YOUTH IN THE FOSTER CARE SYSTEM, Human Rights Campaign, https://assets2.hrc.org/
files/assets/resources/HRC-YouthFosterCareIssueBrief-FINAL.pdf .............................................15
Mark Strasser, Legislative Presumptions and
Judicial Assumptions: On Parenting, Adoption and the Best Interests of the Child, 45
KAN. L. REV. 49 (1996) ............................................12
Mary L. Bonauto, Civil Marriage as a Locus of
Civil Rights Struggles, 30 HUM. RTS. 3 (2003) .........9
viii
TABLE OF AUTHORITIES—Continued
Page
Nan D. Hunter, The Sex Discrimination Argument in Gay Rights Cases, 9 J.L. & POL’Y 397
(2000) .......................................................................27
Nanette Gartrell et al., Adolescents with Lesbian Mothers Describe Their Own Lives, 59
J. OF HOMOSEXUALITY 1211 (2012) ...........................9
Pennsylvania State Adoption Assistance Program, N. AM. COUNCIL ON ADOPTABLE CHILD.
(Sept. 2019).................................................... 3, 12, 14
President Nelson Mandela, Address at the
Launch of the Nelson Mandela Children’s
Fund, AFR. NAT’L CONG. (May 8, 1995) .....................2
Shoshana K. Goldberg & Kerith J. Conron, How
Many Same-Sex Couples U.S. are Raising
Children, WILLIAMS INST. 1 (July 2018) ..................11
Susannah W. Pollvogt, Unconstitutional Animus, 81 FORDHAM L. REV. 887 (2012) .....................31
Tanya M. Washington, Throwing Black Babies
Out With the Bathwater: A Child-Centered
Challenge to Same-Sex Adoption Bans, 6 HASTINGS RACE & POVERTY L. J. 1 (2008) .................. 5, 26
U.S. Administration for Children and Families
Children’s Bureau, The AFCARS Report: Preliminary FY 2017 Estimates as of August 10,
2018–No. 25 (2019) ............................................ 11, 14
1
INTERESTS OF AMICI CURIAE1
Amici are law professors and scholars of children
and the law, family law, equal protection law, and antidiscrimination law. Professor Cary M. Shelby is a former foster youth. Amici submit this brief to: (1) demonstrate that allowing a government contractor
providing public foster care services a categorical exemption—unrelated to children’s needs and same-sex
foster parents’ fitness—harms children in the State’s
care; and (2) explain that allowing agencies to discriminate based on a conviction that only men and women
can marry would give legal effect to a private religious
belief, at the expense of foster children and contrary to
Fourteenth Amendment values. Neither the majority
nor “some fraction of the body politic” should be permitted to “use the power of the State to enforce [its private] views on the whole of society through operation
of [law].”2 Amici’s analysis advances the primacy of
1
This brief was not authored, in whole or in part, by counsel
for either party, and no person other than amici and their academic institutions contributed monetarily to the preparation or
submission of this brief. This amicus brief is filed pursuant to a
letter of consent from Petitioners and Intervenors. Respondents
filed blanket consents on the docket.
2
Lawrence v. Texas, 539 U.S. 558, 571 (2003) (explaining
that the condemnation of same-sex sexual relations “has been
shaped by religious beliefs, conceptions of rights and acceptable
behavior, and respect for the traditional family,” however, “[t]he
issue is whether the majority may use the power of the State to
enforce these views on the whole of society through operation of
the criminal law.”); City of Cleburne v. Cleburne Living Ctr., 473
U.S. 432, 448 (1985) (“[T]he City may not avoid the strictures of
[the Equal Protection] Clause by deferring to the wishes or objections of some fraction of the body politic. ‘Private biases may be
2
children’s rights and interests to highlight that carving out a religious exemption to an anti-discrimination
mandate forces the State to breach its highest duty to
protect children in its care and offends the Fourteenth
Amendment.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
There can be no keener revelation of a society’s soul
than the way in which it treats its children.3
The framing of this dispute has centered on the
religious rights of a government contractor to exclude
married same-sex couples from providing foster homes
in violation of the City’s contractual anti-discrimination law. Minimized in the analysis are thousands of
children in foster care who may be directly and adversely impacted if Catholic Social Services’ (CSS) private belief in the provision of foster care services is
given legal effect. It is the children whose placement
options that may be curtailed and their interests that
amici center in the constitutional calculus.4
outside the reach of the law, but the law cannot, directly or indirectly, give them effect.’ ”) (citing Palmore v. Sidoti, 466 U.S. 429,
433 (1984)).
3
President Nelson Mandela, Address at the Launch of the
Nelson Mandela Children’s Fund, AFR. NAT’L CONG. (May 8,
1995), http://www.mandela.gov.za/mandela_speeches/1995/950508_
nmcf.htm.
4
We believe that the best solution for children is to remain
or be reunified with their families of origin when possible.
3
Amici advance two arguments. First, a categorical
exemption, based on religious beliefs rather than foster children’s needs, does not serve the best interests
of children and violates the State’s duty to foster children. Such an exemption needlessly restricts the pool
of prospective foster parents, exacerbating child-welfare realities that increase the risk of a greater number
of children being confined to long-term, institutional
care. The reduction of same-sex foster parents would
also have a disproportionate impact on “special needs”5
and LGBT children in foster care.6
Second, allowing a government contractor to exclude same-sex foster parents gives legal effect to private beliefs in the provision of public foster care
services in contravention of the aims of the Fourteenth
Amendment. The requested exemption is not inert; it
is one that gives legal effect to unconstitutionally impermissible forms of discrimination on the basis of sex
and sexual orientation. This Court’s equality and liberty jurisprudence eschews gender stereotyping about
the role of men and women in parenting, maintains a
strong presumption against sex discrimination, and
5
55 Pa. Code §§ 3140.201–3140.210 (2020); Pennsylvania
State Adoption Assistance Program, N. AM. COUNCIL ON ADOPTABLE CHILD. (Sept. 2019), https://www.nacac.org/help/adoptionassistance/adoption-assistance-us/state-programs/pennsylvaniaadoption-assistance-program/ (an itemized list of children
deemed “special needs”).
6
Child Welfare, YOUTH.GOV, https://youth.gov/youth-topics/
lgbtq-youth/child-welfare (last visited July 10, 2020).
4
rejects state action that singles out or excludes LGBT
people.7
---------------------------------♦---------------------------------
ARGUMENT
CSS is a government contractor providing public
foster care services for the City of Philadelphia. Like
all contractors performing this critical government service, CSS must adhere to generally applicable nondiscrimination requirements. The City includes a
provision in all foster care contracts that requires contractors to comply with the Fair Practices Ordinance
(FPO). This ordinance prohibits discrimination in
“public accommodations” on the basis of race, religion,
sexual orientation, gender identity, and marital status,
to name a few.8 Yet, CSS seeks a religious exemption to
the prohibition on sexual orientation discrimination
because of its religious belief that marriage can only
be between a man and a woman.9 In other words,
7
Romer v. Evans, 517 U.S. 620, 633 (1996) (The flaw of a
blanket exemption to state anti-discrimination law is akin to one
of this Court’s objections to Amendment 2: “It is at once too narrow and too broad. It identifies persons by a single trait and then
denies them protection across the board.”).
8
Phila. Code § 9-1106 (2016).
9
Brief for Petitioner at 8–9, Fulton v. City of Philadelphia,
140 S. Ct. 1104 (2020) (No. 19-123) (“Home study certifications
signify an agency’s approval of a family, and CSS understands the
home studies as an endorsement of the relationships of those living in the home. Accordingly, CSS cannot certify relationships
during a home study that are inconsistent with its Catholic beliefs.”).
5
CSS seeks to categorically refuse to certify qualified
same-sex couples as foster parents and to continue receiving government funding while doing so.10
Often, rights-based disputes center on adults’ interests; however, critical to the Court’s analysis is the
fact that children are at the heart of this legal controversy.11 As amici highlighted in their amicus brief in
Obergefell v. Hodges, which the Court cited, children’s
interests must be weighed in the constitutional analysis.12 This Court has acknowledged, “the protection
that foster children have is simply the requirement of
state law that decisions about their placement be determined in the light of their best interests.”13 The City
would breach its duty to foster children in its care by
allowing a government contractor to exclude families
based on private beliefs that contravene both children’s best interests and Fourteenth Amendment principles. This breach is particularly acute for “special
needs”14 children who face unique placement
10
Id. at 9 (“In practice, this means that CSS cannot provide
foster care certifications for unmarried couples, regardless of sexual orientation, nor for same-sex married couples.”).
11
Catherine Smith, Obergefell’s Missed Opportunity, 79 L. &
CONTEMP. PROBS. 223, 223 (2016) (“[C]hildren’s legal interests
are usually sidelined by an unyielding obsession with the interests of adults in our society.”).
12
Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015) (citing
Brief of Scholars of the Constitutional Rights of Children as Amici
Curiae 22-27).
13
Smith v. Org. of Foster Families for Equal. & Reform, 431
U.S. 816, 860 (1977) (Stewart, J., concurring).
14
Tanya M. Washington, Throwing Black Babies Out With
the Bathwater: A Child-Centered Challenge to Same-Sex Adoption
6
challenges and for LGBT children who have been
forced from their homes because their families reject
their sexual orientation or gender identity, often on religious grounds.15
I.
ALLOWING A GOVERNMENT CONTRACTOR TO CATEGORICALLY EXCLUDE
SAME-SEX FOSTER PARENTS FAILS TO
SERVE THE BEST INTERESTS OF CHILDREN
“[W]hen the state places a child in state-regulated
foster care, the state has entered into a special relationship with that child which imposes upon it certain
affirmative duties.”16 These obligations center on the
needs and interests of minor children to whom the
State owes “a duty of the highest order.”17 The proper
Bans, 6 HASTINGS RACE & POVERTY L. J. 1, 1 (2008) (“ ‘[S]pecial
needs’ children . . . includes children with medical and developmental disabilities, older children, and sibling sets wh[o] are more
difficult to place. . . .”).
15
Approximately 26 percent of LGBT youth were forced from
their homes because of conflicts with their families of origin regarding their sexual orientation or gender identity. Child Welfare,
YOUTH.GOV, https://youth.gov/youth-topics/lgbtq-youth/child-welfare
(last visited July 10, 2020).
16
Nicini v. Morra, 212 F.3d 798, 808 (3d Cir. 2000); see also
D.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364,
1372 (3d Cir. 1992) (en banc) (“A relationship between the state
and foster children arises out of the state’s affirmative act in finding the children and placing them with state-approved families.
By so doing, the state assumes an important continuing, if not
immediate, responsibility for the child’s well-being.”).
17
Palmore v. Sidoti, 466 U.S. 429, 433 (1984).
7
exercise of the State’s commitment to children within
its care and custody is defined by the best interests of
the child standard.18 In the foster care context, the best
interests of children are served by the placement option that provides the most permanence, stability, and
security.19
The State has a duty to take actions that facilitate,
rather than foreclose, placement in the optimal setting.20 Providing foster care services is delegable, and
the duty owed to foster children remains. This delegated duty must be performed in service of children’s
best interests.
Whether the City or its contracted agent is assessing the eligibility of prospective foster parents, determinations must be informed by objective factors
related to children’s needs and parental fitness. Contractors who choose to provide foster care services do
not have the authority to act in ways that harm
18
In re Sweeney, 574 A.2d 690, 691 (Pa. Super. Ct. 1990) (noting, “issues of custody and continuation of foster care are determined according to a [foster] child’s best interests”); Lindley v.
Sullivan, 889 F.2d 124, 128–32 (7th Cir. 1989).
19
Pennsylvania and federal child welfare law identify children’s best interests as being served by the most beneficial placement option. See The Adoption and Safe Families Act of 1997, 42
U.S.C. §§ 671(a)(15), 673(b)(d), 675(5)(E) (2018); 11 PA. STAT. AND
CONST. STAT. ANN. § 2633 (West 2020); D.P. v. G.J.P., 146 A.3d
204, 211 (Pa. 2016) (observing the state’s “compelling interest in
safeguarding children . . . and promoting their wellbeing”).
20
Once a child is within the care and custody of the State,
and it is acting “[a]s parens patriae, the State’s goal is to provide
the child with a permanent home.” Santosky v. Kramer, 455 U.S.
745, 766 (1982).
8
children, even if their actions are grounded in privately
held religious beliefs. Excluding same-sex foster parents based on categorical considerations unrelated to
merit or fitness contravenes children’s best interests
and breaches the government’s duty to act in furtherance of those entrusted to its care. In the foster care
context, children’s best interests are served by access
to familial settings.21
A. Children’s Best Interests are Better
Served By Placement with Foster Families Than in Institutional Care Settings
Placement with foster families, including LGBT
foster families, is generally more beneficial to children
than placement in long-term institutional care in congregate care homes and furthers, rather than frustrates, children’s best interests.22 There is a
21
Encouraging Adoption: Hearing Before the Subcomm. on
Human Res. of the Comm. on Ways and Means, 105th Cong. 112
(1997) (statement of Fred H. Wulczyn, Ph.D., University of Chicago) (“Permanency has a variety of connotations including the
notion of stability with respect to the home where a child lives
and his or her relationship to their caregivers.”).
22
“[Foster care] youths, lacking permanent families to help
them transition into adulthood, are at heightened risk of negative
outcomes: emotional adjustment problems, poor educational results and employment prospects, and inadequate housing and
homelessness; furthermore, they are more likely to become involved with the criminal justice system.” EVAN B. DONALDSON
ADOPTION INST., EXPANDING RESOURCES FOR WAITING
CHILDREN II: ELIMINATING LEGAL AND PRACTICE BARRIERS TO GAY AND LESBIAN ADOPTION FROM FOSTER
CARE 11 (2008).
9
substantial and growing body of evidence documenting
the harms of extended institutional care, including
poverty, homelessness, housing insecurity, increased
rates of substance abuse, unemployment, incarceration, poor academic performance, low graduation rates,
and early parenthood.23 Conversely, exclusion of LGBT
parents from fostering finds no support in the body of
credible social science research on outcomes for children in LGBT families.24
23
Gary J. Gates et al., Williams Inst., Adoption and Foster
Care by Gay and Lesbian Parents in the United States 4, 17–18
(2007).
24
Mary L. Bonauto, Civil Marriage as a Locus of Civil Rights
Struggles, 30 HUM. RTS. 3, 7 (2003) (noting that “thirty-five years
of studies showing that children of gay and lesbian parents are
normal and healthy on every measure of child development”).
“[R]esearch has challenged the stereotype of gays and lesbians as
individuals who lack the ability, relationship stability and/or
moral values to adequately raise children. Reviews of nearly a
quarter-century of research on parenting by non-heterosexual
adults is extraordinarily consistent in indicating that they are
just as competent and well-adjusted as their heterosexual counterparts and that the children in their households show no meaningful differences in psychological adjustment from those who
grow up with straight parents. . . .” DAVID M. BRODZINSKY &
EVAN B. DONALDSON ADOPTION INST., EXPANDING RESOURCES FOR CHILDREN III: RESEARCH-BASED BEST
PRACTICES IN ADOPTION BY GAYS AND LESBIANS 13
(2011), https://library.childwelfare.gov/cwig/ws/library/docs/gateway/Blob/52535.pdf ?r=1&rpp=10&upp=0&w=+NATIVE%28%27
recno%3D52535%27%29&m=1; see also Nanette Gartrell et al.,
Adolescents with Lesbian Mothers Describe Their Own Lives, 59
J. OF HOMOSEXUALITY 1211, 1212–22 (2012) (The researchers conducted a longitudinal study over three decades of children of lesbian parents and reported positive outcomes for children.).
10
This Court acknowledged the parental fitness of
same-sex couples in Obergefell v. Hodges, observing:
Most States have allowed gays and lesbians to
adopt, either as individuals or as couples, and
many adopted and foster children have samesex parents. This provides powerful confirmation from the law itself that gays and lesbians
can create loving, supportive families.25
Placement with foster families is more beneficial to
children than long-term institutional settings, and
LGBT families are available to provide foster homes.
B. A Government Contractor’s Categorical
Exclusion Diminishes Access to Familial
Placements, Harming All Children in
Foster Care and Disproportionately Impacting “Special Needs” and LGBT Children
Allowing discrimination that excludes same-sex
foster parents based solely on their sexual orientation
harms all foster children and imposes an even harsher
consequence on “special needs” and LGBT children in
the State’s care.
Child welfare realities across the nation reflect a
surplus of waiting children and a deficit of prospective
parents.26 The number of children in the child welfare
25
Obergefell, 135 S. Ct. at 2600 (citing Brief for Gary J. Gates
as Amicus Curiae 4–5).
26
Children’s Bureau, U.S. Dep’t of Health & Human Servs.,
Child Welfare Outcomes 2016 Report to Congress (2016),
11
system is increasing, while there has been no corresponding increase in the numbers of available foster
families.27 According to a study from 2014 to 2016,
same-sex couples raising children were seven times
more likely to foster children and to adopt children
than their different-sex counterparts.28 LGBT foster
families are increasingly filling an important need in
the foster care system. Excluding them from the pool
of prospective parents will mean more foster children
will experience the harms of long-term, institutionalized care.29
https://www.acf.hhs.gov/sites/default/files/cb/cwo2016_exesum.pdf;
Children’s Bureau, U.S. Dep’t of Health & Human Servs., Trends
in Foster Care and Adoption: FY 2009–FY 2018, at 1 (2019),
https://www.acf.hhs.gov/sites/default/files/cb/trends_fostercare_
adoption_09thru18.pdf.
27
John Kelly, Projection: National Foster Care Numbers
Continue to Rise in 2017 IMPRINT, (Nov. 2, 2017), https://chronicle
ofsocialchange.org/youth-services-insider/projection-national-fostercare-numbers-will-continue-rise; Children’s Bureau, U.S. Dep’t of
Health & Human Servs, The AFCARS Report: Preliminary FY
2016 Estimates as of Oct 20, 2017–No. 24 (2017), https://www.
acf.hhs.gov/sites/default/files/cb/afcarsreport24.pdf; U.S. Administration for Children and Families Children’s Bureau, The
AFCARS Report: Preliminary FY 2017 Estimates as of August 10,
2018–No. 25 (2019), https://www.acf.hhs.gov/sites/default/files/cb/
afcarsreport25.pdf [hereinafter The AFCARS Report: Preliminary
FY 2017 Estimates].
28
Shoshana K. Goldberg & Kerith J. Conron, How Many
Same-Sex Couples in the U.S. are Raising Children, WILLIAMS
INST. 1 (July 2018), https://williamsinstitute.law.ucla.edu/wpcontent/uploads/Same-Sex-Parents-Jul-2018.pdf.
29
BRODZINSKY, supra note 24, at 3 (“[S]ocietal stigmas relating to adoption by lesbians and gay men remain, as do institutional barriers. These impediments do not further the best
12
1. A Categorical Exclusion Harms All
Foster Children
A government contractor using its delegated authority to exclude same-sex couples would likely expose more foster children to the documented harms of
long-term confinement in state institutions and group
homes.30 Categorical exclusions of same-sex foster parents would shrink the already insufficient pool of available prospective foster parents.31 The net effect of
allowing an exemption from the City’s non-discrimination requirement would be frustration of the City’s
ability to provide the most beneficial placement option
for the greatest number of foster children.32 More foster children would likely experience negative outcomes
in contravention of their best interests.33 The
interests of children; indeed, they prevent or delay permanency
for many, undermining their long-term psychosocial and academic adjustment. With over 100,000 children continuing to linger in foster care . . . every effort must be made to find timely and
permanent placements for them. . . .”).
30
Pennsylvania State Adoption Assistance Program, supra
note 5.
31
Id. at 6 (“[B]anning or hindering lesbians and gay adults
from fostering or adopting will reduce the number of permanent
and nurturing homes for children in need.”).
32
“[S]ome children will not be adopted at all. Such children
may have to live in state foster institutions.” Mark Strasser, Legislative Presumptions and Judicial Assumptions: On Parenting,
Adoption and the Best Interests of the Child, 45 KAN. L. REV. 49,
76 (1996).
33
Barbara Bennett Woodhouse, Waiting for Loving: The
Child’s Fundamental Right to Adoption, 34 CAP. U. L. REV. 297,
326 (2005) (“In the face of a shortage of adoptive parents, categorical bans actually ensure that some children will never have a
13
exemption CSS is seeking would frustrate, rather than
facilitate, the best placement option for foster children
and breach the government’s fiduciary duty to this vulnerable population.
2. A Categorical Exclusion Disproportionately Impacts “Special Needs”
Foster Youth
“Special needs” children are defined under Pennsylvania law to include:
•
children ages 5 to 18;
•
racial or ethnic minority youth;34
•
sibling groups;
family of their own. . . . Many of these children will wait in vain
and will ‘age out’ of the system into homelessness and joblessness.”).
34
Half of the children under eighteen who live with same-sex
couples are children of color. Gary J. Gates, Williams Inst., LGBT
Parenting in the United States 1 (2013), https://willamsinstitute.
law.ucla.edu/wp-content/uploads/LGBT-Parenting.pdf; see also
Washington, supra note 14, at 2 (“For many Black orphans the
choice is not between placement with a heterosexual parent or a
gay or lesbian parent; rather, it is between placement and nonplacement.”); DOROTHY ROBERTS, SHATTERED BONDS: THE COLOR
OF CHILD WELFARE 149 (2002). LGBT foster youth of color are
suffering at the intersection of race and LGBT identity. Kerith J.
Conron & Bianca D.M. Wilson, Williams Inst., LGBT Youth of
Color Impacted by the Child Welfare and Juvenile Justice Systems: A Research Agenda 4 (June 2019), http://williamsinstitute.
law.ucla.edu/wp-content/uploads/LGBTQ-YOC-Social-ServicesJul-2019.pdf.
14
•
children with physical, mental, emotional
conditions or disabilities; and
•
children with a genetic condition that indicates a high risk of developing a disease
or disability.35
“Special needs” children, who are more likely to be
fostered by same-sex couples, tend to have few family
placement options available to them and are particularly vulnerable to experiencing the harms of institutional care and the risk of aging out of the foster care
system.36
Same-sex couples are not only seven times more
likely to foster and adopt, they are also “more likely to
adopt older children and children with special needs,
who are statistically less likely to be adopted.”37 Allowing religious entities to refuse to certify same-sex couples would therefore decrease the number of available
families for children. Categorically excluding same-sex
foster parents is likely to substantially and adversely
impact the foster care system and the most vulnerable
children it serves.
35
Pennsylvania State Adoption Assistance Program, supra
note 5.
36
“Special needs children . . . suffer disproportionately from
categorical barriers to adoption. Remember, special needs children include not only disabled and older children, but also children of color. [They] are the ‘toughest children to place in adoptive
homes’ and they ‘often wait the longest before being adopted.’ ”
Woodhouse, supra note 33, at 327.
37
The AFCARS Report: Preliminary FY 2017 Estimates, supra note 27; see also BRODZINSKY, supra note 24, at 33–34.
15
3. A Categorical Exclusion Disproportionately Harms and Stigmatizes
LGBT Foster Youth
LGBT children will also be detrimentally and disproportionately impacted by the exclusion of LGBT
families by contracted foster care agencies. Because
LGBT youth, like “special needs” foster children, have
unique needs and present unique placement challenges, it is more likely they will age out of the foster
care system and suffer harmful outcomes.
LGBT youth are overrepresented in the foster care
system, comprising a staggering 19 to 34 percent of foster children.38 They are also more likely to experience
multiple placements and to be placed in congregate
care.39 Seventy percent of LGBT youth report experiencing physical violence while in congregate care.40
LGBT youth continue to experience negative effects of
foster care even after exiting the system.41 These
38
LGBTQ YOUTH IN THE FOSTER CARE SYSTEM, Human
Rights Campaign, https://assets2.hrc.org/files/assets/resources/HRCYouthFosterCare-IssueBrief-FINAL.pdf.
39
Id.
40
Id.
41
Homelessness & Housing, YOUTH.GOV, https://youth.gov/
youth-topics/lgbtq-youth/homelessness (last visited Aug 3, 2020).
Twenty to forty percent of homeless youth identify as LGBT. Id.
Two of the top four causes for homelessness among LGBT youth
include: (1) family rejection of their sexual orientation or gender
identity; and (2) aging out of the foster care system. Id. at 5. One
study found that 65 percent of homeless LGBT youth had lived in
congregate care or foster homes, and 39 percent of those youth
were forced to leave because of their sexual orientation or gender
identity. Child Welfare, supra note 15.
16
negative experiences are only exacerbated for LGBT
youth of color.42 The disproportionate number of LGBT
youth in foster care highlights the need to increase the
pool of foster parents available to provide an affirming,
supportive, familial placement setting.
Further, when discrimination against same-sex
couples occurs in the context of the public child welfare
system—a government program—it sends a message
that stigmatizes and humiliates LGBT foster children.43
In United States v. Windsor, in striking down the
Defense of Marriage Act, this Court raised its concern
for how the “differentiation” between different-sex and
same-sex families humiliates children being raised by
same-sex couples.44 This concern should undoubtedly
extend to LGBT youth. It would certainly be incongruous to recognize the pain of discrimination to children
of LGBT parents and not to LGBT children themselves.45
42
See Kerith J. Conron & Bianca D.M. Wilson, supra note
34.
43
United States v. Windsor, 570 U.S. 744, 771–75 (2013)
(DOMA “humiliates tens of thousands of children now being
raised by same-sex couples”); see also Angela Onwuachi-Willig &
Jacob Willig-Onwuachi, A House Divided: The Invisibility of the
Multiracial Family, 44 Harv. C.R.-C.L. 231 (2009) (documenting
similar harms to children in multiracial families).
44
Windsor, 570 U.S. at 772.
45
See generally Kyle C. Velte, Obergefell’s Expressive Promise, 6 HLRE 157 (2015) (illustrating how the Court’s LGBT-rights
17
Allowing sexual orientation and gender identity
discrimination in the provision of government foster
care services would exacerbate the psychic trauma
that many LGBT foster children already carry with
them. A significant percentage of these young people
are forced from their homes because their families reject their sexual orientation or gender identity, often
on religious grounds.46 To require governments to enshrine into law the hurtful personal beliefs LGBT
youth seek to escape or are forced to flee is diametrically opposed to public child welfare aims.
Allowing an exclusion of LGBT foster parents also
sends a negative message about who these young people are now, as LGBT youth, and who they will be as
adults. LGBT youth should be free to experience teen
crushes and first love without government-endorsed
messages that tell them that they and their relationships are illegitimate. It also sends a harmful message
to LGBT youth who hope to one day become parents
and foster parents themselves.
LGBT youth have reported that placement with
accepting foster parents is a factor contributing to
their empowerment and positive future outcomes.47
Ensuring a robust pool of foster parents—including
opinions send an important and transformative message about
the place of LGBT Americans in society).
46
ANNIE E. CASEY FOUNDATION, LGBTQ IN CHILD WELFARE:
A SYSTEMATIC REVIEW OF THE LITERATURE 3 (2016), https://www.
aecf.org/m/resourcedoc/aecf-LGBTQ2inChildWelfare-2016.pdf
[hereinafter CASEY FOUNDATION REVIEW].
47
Id. at 35.
18
LGBT foster parents—to LGBT youth, will maximize
the number of placements that can mitigate the psychological and emotional harm these children suffer.48
Permitting a government contractor to violate the
City of Philadelphia’s non-discrimination requirement
would harm all children in foster care and frustrate
child welfare goals. Notably, the coronavirus is making
it even more difficult to find foster homes for children.49The harmful impact of the rule CSS seeks would
exacerbate the challenge of finding foster homes in the
midst of a global, deadly pandemic, particularly for
“special needs” and LGBT youth. To ignore this reality,
in deference to an impermissible, discriminatory, personal belief against the families more likely to foster
the most vulnerable children, would violate children’s
rights and interests, and constitute an unconscionable
act of cruelty.
48
Id.
“Prior to COVID-19, no communities in the country could
say they had more than enough foster families. . . . When you
layer COVID-19 on top of that, the crisis becomes just that much
more challenging.” Gracie Bonds Staples, Why Surge in Foster
Care Placement Will Follow COVID-19 Pandemic, ATLANTA JOURNALCONSTITUTION (April 7, 2020), https://www.ajc.com/lifestyles/
why-surge-foster-care-placement-will-follow-covid-pandemic/
NKtnijOQwZpfsL8XypJsrL//. “As a result, the number of foster
homes, already all too scarce in Washington before the crisis hit,
will remain static for the state’s over 10,000 foster care children
until the pandemic subsides. . . .” David Dodge, How Coronavirus
Is Affecting Surrogacy, Foster Care and Adoption, N.Y. TIMES
(April 1, 2020), https://www.nytimes.com/2020/04/01/parenting/
coronavirus-adoption-surrogacy-foster-care.html.
49
19
II.
Allowing the Exclusion of Same-Sex Couples Gives Impermissible Legal Effect to Religious Beliefs at the Expense of Children in
Contravention of Fourteenth Amendment
Values
Here, the requested exemption is not simply a private belief with no import or meaning; it is one that
gives legal effect to unconstitutionally impermissible
forms of discrimination. This Court has addressed this
issue in a number of contexts, including LGBT cases.
These decisions raise concerns about government practices that endorse or sanction Fourteenth Amendment
offending personal or private beliefs by giving them effect in the law.
In the seminal case Palmore v. Sidoti,50 this Court
took the unusual step of reviewing, and striking down,
a state family court’s custody order. Following the divorce of a white couple, the mother was awarded custody of the couple’s young child.51 Within months of the
divorce, the father sought custody of the child based on
changed conditions: the mother’s relationship with and
marriage to a Black man.52
Despite finding no concern with either the
mother’s or the stepfather’s parental fitness, the family
court heeded a court counselor’s recommendation
about the “social consequences” for a child being raised
50
466 U.S. 429 (1984).
Id. at 430.
52
Id.
51
20
in “an interracial marriage.”53 Specifically, the counselor opined: “[T]he wife . . . has chosen for herself and
for her child, a life-style unacceptable to the father and
to society. . . . The child . . . is, or at school age will be,
subject to environmental pressures not of choice.”54
While the father’s disapproval of the relationship
was an insufficient basis for awarding him custody, the
judge found that placement with the father was in the
child’s best interest, so that she did not “suffer from . . .
social stigmatization” in a society that did not fully accept interracial relationships.55
This Court reversed because of the actual function
of the lower court’s reliance on a segment of society’s
views of interracial relationships.56 This Court explained that, although “the Constitution cannot control such prejudices [ ] neither can it tolerate them.
Private biases may be outside the reach of the law, but
the law cannot, directly or indirectly, give them effect.”57 This Court’s ruling in Palmore recognized the
eradication of racial discrimination by the State as a
core purpose of the Fourteenth Amendment and made
clear that the law must not give credence to those
views in contravention of the Amendment’s objectives.
53
Id.
Id. at 431 (internal quotation marks omitted).
55
Id.
56
Id. at 432 (“This raises important federal concerns arising
from the Constitution’s commitment to eradicating discrimination based on race.”).
57
Id. at 433.
54
21
Some people may view Palmore as a product of social views, not religious ones, yet it was decided a mere
twenty years after Loving v. Virginia.58 This Court in
Loving explicitly acknowledged the religious origins of
anti-miscegenation laws and held that they were outweighed by the constitutional gravitas of the Fourteenth Amendment right to marry.59 The salient point
is not the origin of the personal belief, it is that once
that belief has been deemed offensive to Fourteenth
Amendment values, the government may not give it legal effect.
We saw a similar concern raised in Obergefell, in
which this Court explained:
Many who deem same-sex marriage to be
wrong reach that conclusion based on decent
and honorable religious or philosophical
premises. . . . But when that sincere, personal
opposition becomes enacted law and public
policy, the necessary consequence is to put the
58
388 U.S. 1 (1967).
Id. at 12. See also id. at 3 (noting that the trial court judge
had highlighted the religious underpinnings of the State of Virginia’s anti-miscegenation law by “stating in an opinion that: ‘Almighty God created the races white, black, yellow, malay and red,
and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such
marriages. The fact that he separated the races shows that he did
not intend for the races to mix.’ ”). See generally Kyle C. Velte,
Recovering the Race Analogy in LGBTQ Religious Exemption
Cases 42 CARDOZO L. REV ___ (forthcoming 2020)
59
22
imprimatur of the States itself on an exclusion[.]60
Here, allowing a government contractor to discriminate in the administration of public foster care
services because they believe marriage must only be
between a man and a woman would give legal effect to
private biases, or even personal beliefs, in violation of
the Fourteenth Amendment. This Court has drawn
“upon principles of liberty and equality to define and
protect the rights of gays and lesbians,” and their families.61 And it should do so here to protect same-sex couples, and the focus of this brief—children in foster care.
First, affording a government contractor a religious exemption would legally endorse private views
based on gender stereotypes about parenting. Second,
it would give legal effect to impermissible sex discrimination in violation of the equal protection guarantee—
a conclusion that should be all but a fait accompli after
this Court’s recent decision in Bostock v. Clayton
County.62 Third, it would give legal effect to a private
60
Obergefell, 135 S. Ct. at 2602.
Id. at 2604; see also Lawrence, 539 U.S. at 578.
62
140 S. Ct. 1731 (2020). See Erwin Chemerinsky, Chemerinsky: Gorsuch Wrote His “Most Important Opinion” in SCOTUS
Ruling Protecting LGBTQ Workers, ABA JOURNAL (July 1, 2020),
https://www.abajournal.com/news/article/chemerinsky-justicegorsuch-just-wrote-his-most-important-opinion (“It is possible
that the court will say Bostock was just about interpreting the
language of Title VII, and that it is different under equal protection. But there seems to be little basis for such a distinction once
the court held that a prohibition against sex discrimination includes outlawing discrimination based on sexual orientation and
gender identity.”); Bostock, 140 S. Ct. at 1783 (Alito, J.,
61
23
bias against same-sex couples, placing the State’s “imprimatur . . . on [the] exclusion.”63
A. Allowing the Exclusion Gives Impermissible Legal Effect to Stereotyping
Granting a religious exemption to discriminate
against same-sex foster parents gives effect to personal
beliefs based on stereotypes about appropriate gender
roles in parenting. It is well-established that laws may
not rely on overbroad generalizations about the different talents, capacities, or preferences of men and
women.64 Assumptions about expected parenting roles
that men and women must or should perform based on
gender alone fall squarely within the gender stereotyping that has been deemed impermissible in equal protection law.65
dissenting) (“Under our precedents, the Equal Protection Clause
prohibits sex-based discrimination unless a ‘heightened’ standard
of review is met. By equating discrimination because of sexual
orientation or gender identity with discrimination because of sex,
the Court’s decision will be cited as a ground for subjection of all
three forms of discrimination to the same exacting standard of
review.”).
63
Obergefell, 135 S. Ct. at 2602.
64
See Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721,
731 (2003) (recognizing “pervasive sex-role stereotype that caring
for family members is women’s work” as an insufficient justification under Equal Protection Clause); Orr v. Orr, 440 U.S. 268,
279–80 (1979) (holding invalid justification based on state’s preference for allocation of family responsibilities under which wife
plays a dependent role).
65
See Catherine E. Smith, Equal Protection for Children of
Gay and Lesbian Parents: Challenging the Three Pillars of
24
For example, in Caban v. Mohammed,66 the Court
struck down a New York law that permitted unwed
mothers to block the adoption of their children by
denying consent to potential adoptees but did not
grant this consent-based objection to unwed fathers. A
father challenged this gender-based distinction as an
equal protection violation.67 The mother argued that
the distinction between unwed mothers and unwed fathers was based on a fundamental difference between
the sexes because “a natural mother, absent special circumstances, bears a closer relationship with her child”
than a father.68 This Court disagreed, finding that “maternal and paternal roles are not invariably different
in importance,” and that even if unwed mothers were
closer to their newborn children, “this generalization
concerning parent-child relations would become less
acceptable as the age of the child increased.”69 This
Court “reject[ed] . . . the claim that the broad, genderbased distinctions of [the statute] is required by any
universal difference between maternal and paternal
relations at every phase of a child’s development.”70
Exclusion—Legitimacy, Dual-Gender Parenting, and Biology, 28
LAW & INEQ. 307, 326 (2010); see also Carlos A. Ball, Lesbian and
Gay Families: Gender Nonconformity and the Implications of Difference, 31 CAP. U. L. REV. 691, 725–48 (2003).
66
441 U.S. 380 (1979).
67
Id. at 385.
68
Id. at 388.
69
Id. at 389.
70
Id.
25
In J.E.B. v. Alabama,71 a prosecutor used nine of
ten peremptory strikes to remove male jurors in a paternity and child support trial. The prosecutor defended his actions “based upon the perception,
supported by history, that men might be more sympathetic to the arguments of a man alleged to be the father of an out-of-wedlock child, while women might be
more sympathetic and receptive to the. . . . [mother].”72
Concerned about gender stereotypes being given impermissible legal effect, this Court rejected the prosecutor’s justification, explaining that “[w]hen state
actors exercise peremptory challenges in reliance on
gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women.”73
Here, CSS’ belief that marriage or child rearing
can only be performed by a man and a woman invokes
age-old stereotypes about the proper roles for men and
women.74 Many can sincerely hold this belief on personal moral, philosophical, or religious grounds; this
private view about gender fitness cannot, however, be
operationalized through law into the administration of
public foster care without running afoul of equal protection jurisprudence. Palmore teaches that “the Constitution cannot control such prejudices but neither
71
511 U.S. 127 (1994).
Id. at 137.
73
Id. at 140.
74
Anthony Michael Kreis, Policing the Painted and the Powdered, 41 CARDOZA LAW REVIEW 399 (2019) (exploring LGBT discrimination’s relationship to gender stereotyping and sexism).
72
26
can it tolerate them.”75 They must not “directly or indirectly” be given legal effect.76
To give them effect not only tramples on Fourteenth Amendment prohibitions, it also contravenes
the best interests of the child standard, which requires
an individualized assessment of the needs of a child
and of the parental competencies of each prospective
parent.77 Gender-based exclusion of same-sex couples
based on categorical and discriminatory beliefs about
their parental fitness does violence to equal protection
values this Court has established in Palmore, Caban,
and J.E.B., and is contrary to foster children’s best interests.
B. Allowing the Exclusion Gives Impermissible Legal Effect to Sex Discrimination
Granting a government contractor a religious exemption to discriminate against same-sex foster parents would give the government’s imprimatur to
impermissible sex classifications, which this Court has
long held carry a “strong presumption” of “invalid[ity]”
75
Palmore, 466 U.S. at 433.
Id.; see generally Lawrence, 539 U.S. at 578 (“[T]he fact
that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from
constitutional attack.”) (quoting Bowers v. Hardwick, 478 U.S.
186, 216 (1986) (Stevens, J., dissenting)).
77
Washington, supra note 14, at 18.
76
27
under the Equal Protection guarantee.78 Since the
1970s, LGBT advocates have consistently argued that
LGBT discrimination is sex discrimination.79
This Court’s recent pronouncement in Bostock
that it is impossible to discriminate against LGBT people without engaging in sex discrimination should apply with equal or greater force to equal protection
law.80
In Bostock, this Court held:
An employer who fires an individual for being
homosexual or transgender fires that person
for traits or actions it would not have questioned in members of a different sex. Sex plays
a necessary and undisguisable role in the decision, exactly what Title VII forbids.81
Title VII prohibits employment discrimination
that occurs “because of . . . sex.”82 According to this
Court, the ordinary meaning of the word “‘sex’ signified
. . . biological distinctions between male and female.”83
Further, it clarified that “because of ” means but-for
causation, which is not the same as a sole cause.84 “So
long as the plaintiff ’s sex was one but-for cause [of the
78
J.E.B., 511 U.S. at 152 (Kennedy, J., concurring).
Nan D. Hunter, The Sex Discrimination Argument in Gay
Rights Cases, 9 J.L. & POL’Y 397, 413 (2000).
80
Bostock, 140 S. Ct. at 1737.
81
Id.
82
42 U.S.C. § 2000e-2(a)(1) (2020).
83
Bostock, 140 S. Ct. at 1739.
84
Id.
79
28
challenged employment] decision, that is enough to
trigger the law.”85
Justice Gorsuch then applied the entire phrase
“because of an individual’s . . . sex” to the LGBT plaintiffs and concluded that it was impossible to discriminate against LGBT people without taking their “sex”
into consideration. With regard to sexual orientation,
he explained: “If the employer fires the male employee
for no reason other than the fact that he is attracted to
men, the employer discriminates against him for traits
or actions it tolerates in his female colleagues.”86 Similarly, for transgender employees, he reasoned: “If the
employer retains an otherwise identical employee who
was identified as female at birth, the employer intentionally penalizes a person identified as male at birth
for traits or actions that it tolerates in an employee
identified as female at birth.”87 In both of these instances, “but-for” the employee’s sex, the individual
would not have been subjected to termination.88 In
short, as this Court concluded, it is not possible to
85
Id. (emphasis added); see also id. (“Often, events have multiple but-for causes. . . . [A Title VII] defendant cannot avoid liability just by citing some other factor that contributed to its
challenged employment decision.” (emphasis in original)).
86
Id. at 1741.
87
Id.
88
“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally
discriminate against individual men and women in part because
of sex. That has always been prohibited by Title VII’s plain
terms—and that ‘should be the end of the analysis.’” Id. at 1743
(internal citation omitted).
29
discriminate against an LGBT individual without engaging in sex discrimination.89
Here, CSS seeks to offer its services only to different-sex married couples based on the religious belief
that marriage is between only a man and a woman.
Rejecting an otherwise qualified same-sex foster couple constitutes sex discrimination because if one member of the same-sex couple were a different sex, CSS
would offer them certificatoin. In other words, CSS is
discriminating against the couple because of sex. Their
exclusion from the pool of available parents therefore
constitutes sex discrimination.
C. Allowing the Exclusion Gives Impermissible Legal Effect to Sexual Orientation Discrimination
Permitting a categorical religious exemption in
this context would give impermissible legal effect to
CSS’ personal beliefs about same-sex marriage and
same-sex families.90 This Court has expressly confirmed that “many same-sex couples provide loving
and nurturing homes to children, whether biological or
adopted . . . and many adopted and foster children
89
Id. at 1741 (“[I]t is impossible to discriminate against a
person for being homosexual or transgender without discriminating against that individual based on sex.”).
90
Latta v. Otter, 771 F.3d 456, 470 (9th Cir. 2014) (“[T]he
fear that an established institution will be undermined due to private opposition to its inclusive shift is not a legitimate basis for
retaining the status quo.”). Nor is it grounds for changing it.
30
have same-sex parents.”91 It has also struck down state
laws, including those supported by sincerely held
moral and religious beliefs, that single out or exclude
LGBT people from the Fourteenth Amendment’s strictures.92 And, because CSS is a government contractor,
if it is granted a religious exemption from the City’s
contractual non-discrimination law, that puts “the imprimatur of the State itself ” on CSS’ exclusion of samesex couples.93
In Lawrence v. Texas,94 this Court struck down
Texas’ sodomy statute as an unconstitutional violation
of the Due Process rights of gays and lesbians, reversing Bowers v. Hardwick.95 The State’s justification for
criminalizing sodomy was that society had long condemned homosexual conduct as immoral. This Court
explained that simply having a deeply held moral or
religious conviction does not answer whether an exclusion is constitutionally sound.96 “The issue is whether
the majority may use the power of the State to enforce
these views on the whole of society through operation of
91
Obergefell, 135 S. Ct. at 2600.
Romer, 517 U.S. at 635 (“A State cannot so deem a class of
persons a stranger to its laws.”).
93
Obergefell, 135 S. Ct. at 2602.
94
539 U.S. 558 (2003).
95
478 U.S. 186 (1986), overruled by Lawrence v. Texas, 539
U.S. 558 (2003).
96
Lawrence, 539 U.S. at 571.
92
31
criminal law.”97 This Court’s answer: the majority may
not.98
This Court’s ruling in Obergefell left no doubt that
children and their rights and interests are paramount
considerations in familial contexts. This Court expressed concerns about marriage bans economic and
psychological injury to children of same-sex couples,
and the interference with the “integrity . . . of their
own famil[ies].”99
In this case, allowing a government contractor to
refuse to certify same-sex couples as foster parents
based on the belief that marriage is between a man
and a woman would force the state to place its imprimatur on the exemption. The consequence of this exclusion harms LGBT people.100 And, amici contend that
97
Id. (emphasis added); see also id. at 577–78 (“[T]he fact
that the governing majority in a State has traditionally viewed a
particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from
constitutional attack.” (quoting Bowers, 478 U.S. at 216 (Stevens,
J., dissenting))); Bowers, 478 U.S. at 212 (Blackmun, J., dissenting) (“A State can no more punish private behavior because of religious intolerance than it can punish such behavior because of
racial animus. ‘The Constitution cannot control such prejudices
but neither can it tolerate them. Private biases may be outside
the reach of the law, but the law cannot, directly or indirectly give
them effect.’” (quoting Palmore, 466 U.S. at 433)).
98
Lawrence, 539 U.S. at 578.
99
Obergefell, 135 S. Ct. at 2600.
100
See Susannah W. Pollvogt, Unconstitutional Animus, 81
FORDHAM L. REV. 887, 926 (2012) (discussing the Equal Protection Clause’s goal to eliminate laws that create social castes).
32
such exclusions also harm children in foster care
awaiting families.
City of Cleburne v. Cleburne Living Center101 provides another instructive example of the dangers of allowing private beliefs to take root in law. In Cleburne,
this Court struck down a zoning ordinance requiring
permits for group homes for individuals with cognitive
disabilities, in part, due to the City Council’s reliance
on property owners’ stereotypes.102 This Court was
clear:
The City may not avoid the strictures of the
[Equal Protection] Clause by deferring to the
wishes or objections of some fraction of the
body politic.103
Here, the City of Philadelphia opposes such deference, yet respondents, a government contractor, seek a
religious exemption to directly give impermissible legal effect to their personal beliefs about the administration of public foster care services. Some may view
private beliefs about sexual orientation as not triggering heightened Fourteenth Amendment protections.104
City of Cleburne, however, demonstrates that state action that gives impermissible legal effect to private beliefs can fail even rational basis review.105
101
473 U.S. 432 (1985).
Id. at 448.
103
Id. (citing Palmore, 466 U.S. at 433).
104
This conclusion is called in to question by this Court’s ruling in Bostock.
105
City of Cleburne, 473 U.S. at 450.
102
33
CSS invokes its sincerely held religious belief to
discriminate against same-sex couples. However, the
freedom to express or exercise one’s religion is not absolute. Giving impermissible legal effect to a government contractor’s personal beliefs in contravention of
Fourteenth Amendment protections, whatever their
source or rationale, undermines children’s rights and
interests and contravenes the City’s duty to provide
them with the most advantageous, familial placement
setting.
---------------------------------♦---------------------------------
CONCLUSION
For the foregoing reasons, the judgment of the
court of appeals should be affirmed.
Respectfully submitted,
CATHERINE E. SMITH
Counsel of Record
UNIVERSITY OF DENVER
STURM COLLEGE OF LAW
2255 E. Evans Avenue
Denver, CO 80208
303-871-6180
csmith@law.du.edu
TANYA M. WASHINGTON HICKS
GEORGIA STATE UNIVERSITY COLLEGE OF LAW
85 Park Place NE
Atlanta, GA 30303
404.413.9225
twashington10@gsu.edu
34
LAUREN FONTANA
UNIVERSITY OF COLORADO DENVER
SCHOOL OF PUBLIC AFFAIRS
1380 Lawrence Street
Denver, CO 80217
303.315.0197
lauren.fontana@ucdenver.edu
JESSICA DIXON WEAVER
SMU DEDMAN SCHOOL OF LAW
P.O. BOX 750116
Dallas, TX 75275
214.768.2641
jdweaver@smu.edu
CARY M. SHELBY
WASHINGTON AND LEE SCHOOL OF LAW
1 Denny Circle
Lexington, VA 24450
540.458.8513
cshelby@wlu.edu
ANGELA ONWUACHI-WILLIG
BOSTON UNIVERSITY SCHOOL OF LAW
765 Commonwealth Avenue
Boston, MA 02215
617.353.3112
aow@bu.edu
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.