That Supreme Court Foster Care Case Is About More Than Just Kids

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November 4, 2020

Today, the Supreme Court heard arguments in Fulton v. City of Philadelphia, a case that could have a profound impact on the delivery of taxpayer-funded government services across the country.

The case involves the efforts of an agency providing foster care services to children in the city’s care being paid with public funding to be exempt from the city’s generally applicable non-discrimination requirements because of religious objections. Specifically, Philadelphia informed Catholic Social Services (“CSS”) that it could no longer refer children to them because the agency refused to accept same-sex couples as foster parents, in violation of the requirement in all foster care agency contacts that agencies not discriminate on the basis of sexual orientation. CSS sued, claiming they are constitutionally exempt from this nondiscrimination requirement.

Lambda Legal has been involved with this case as a friend of the court before both the Court of Appeals and the Supreme Court, shining a light on the harms of allowing this kind of discrimination for LGBTQ children, who are disproportionately represented in the child welfare system as a result of stigma and discrimination. But these youth are not the only ones whose future security is at risk if agencies contracting with the government to provide social services are permitted to apply their own religious litmus tests to determine who can benefit from those services. A ruling that the government cannot enforce nondiscrimination requirements when a contractor cites religious objections would be disastrous for LGBTQ seniors as well.

As our colleagues at SAGE, the Movement Advancement Project, and the Center for American Progress recently highlighted in an issue brief, the stakes could not be higher. Because of higher likelihood of isolation and alienation from families of origin and a lifetime of experiencing discrimination and health disparities, LGBTQ older adults must rely on a network of caregivers and service providers. Much of this network provides services and care through grants and contracts with the government. And a majority of the services older adults rely on are offered by religiously affiliated agencies. This includes senior living communities, nutrition assistance like food delivery or congregate meal programs, adult daycares, food pantries, transportation assistance, and even hospitals. These entities receive taxpayer dollars through Medicare, Medicaid, the Administration for Community Living, the Department of Housing and Urban Development, and the Veterans Administration—to name just a few—and operate under contracts with state and local governments, acting on those governments’ behalf to ensure seniors are able to age in the setting that will be most comfortable and successful for them. If these agencies are permitted to carve LGBT seniors out of these taxpayer-funded critical services and supports, it will jeopardize their well-being, health, and even their lives.

We do not know how the Court will rule. The questions they agreed to review implicate what has been well-settled law around the government’s ability to establish generally applicable requirements that even religious entities must comply with if they want to participate in taxpayer-funded government contracts. The lower courts in Fulton reached the right conclusion, and we can only hope the Supreme Court will do the same. The lives of LGBT seniors may depend on it.