Family Equality Council and COLAGE File Amicus Brief in 3rd Circuit Case Opposing Discrimination By Child Welfare Agencies

Fulton Amicus Brief

“There are many LGBT couples like us who want to create their family through foster care and adoption. However, after facing discrimination in various forms through their lives, many may choose not to pursue adoption if they have doors slammed in their faces and obstacles put in their way.” — Jamie and Bo Nabozny of Minnesota.

Today, Family Equality Council joined by COLAGE, through pro-bono counsel Bryan Cave Leighton Paisner, LLP, filed an amicus curiae (friend of the court) brief in Fulton v. City of Philadelphia, the first case in which an appellate court will weigh in on whether taxpayer-funded faith based child welfare agencies have a right to discriminate against prospective foster parents based on their religious beliefs. In a ruling on July 13, 2018, a district court held that Catholic Social Services (CSS) does not have such a right.

Click here to view the brief

Now the issue is before the U.S. Court of Appeals for the Third Circuit, where CSS maintains that they have a First Amendment right to refuse to license same-sex couples as foster parents, in violation of its contract with the City of Philadelphia (the “City”), which prohibits discrimination based on sexual orientation (among other characteristics). The ACLU, representing Support Center for Child Advocates and Philadelphia Family Pride, intervened in the case in support of the City of Philadelphia. As the City and ACLU establish, the First Amendment prohibits CSS – a government contractor – from discriminating based on religious beliefs.

Despite the enormous need for foster care families, CSS contends that any harm from its admittedly discriminatory policy is hypothetical because same-sex couples can simply go to another agency. CSS is wrong. As we assert in our amicus brief, discrimination can, and does, discourage or delay qualified same-sex parents from fostering. Allowing CSS to violate the City’s nondiscrimination requirements will harm children in the foster care system by denying them access to families who could provide them safe and loving homes.

As with past LGBTQ cases, Family Equality Council’s contribution to this case is our ability to capture the impact and harm of anti-LGBTQ discrimination through the voices of people. Our amicus brief presents to the Court the perspectives of the people directly affected by discriminatory policies like the one CSS seeks to justify, including LGBTQ adults who have sought to foster and young people who were formerly in foster care, as well as the perspectives of those who have been able to successfully foster and adopt when nondiscrimination protections and affirming policies are in place.

The narratives in our amicus brief powerfully demonstrate the harmful impact of discriminatory policies, providing numerous examples of prospective parents who, in the face of discrimination, abandoned their efforts to foster and adopt children and those whose efforts were unnecessarily delayed while children were waiting for a home. The narratives that offer the voices of the inspirational young people who were formerly in care speak to the consequences of placement in group homes or with families not well-matched to their needs, as well as the importance of a diverse pool of prospective parents. Their voices, which too often go unheard, are at the heart of this case because children who age out of foster care without a forever family are those who are harmed the most by discriminatory policies such as CSS’, as they are more likely to experience poverty, homelessness, incarceration, and early parenthood.

By providing narratives that illustrate the real-life impact of discrimination, our brief makes it clear: children in need suffer when agencies are allowed to discriminate. In the words of Joseph DeBiew, who aged out of foster care after spending seven years in congregate care facilities: “I could not have cared less about the sexual orientation or gender identity of foster parents, I just wanted a family and a supportive place to call home.”