With tremors subsiding from the Supreme Court’s Fulton decision (discussed here, here, etc.) authorities in Philadelphia will now face a policy question: to what extent should they attempt to get around the ruling so as to re‐enact blanket anti‐discrimination rules for foster care, even if the effect is to drive from the field the successful local Catholic Social Services agency? Just before the pandemic, I testified to the House Oversight Committee about clashes between religious accommodation and LGBT anti‐discrimination law. While my testimony ventured into many areas, from government contracting to the role of federalism to the positions taken by the now‐departed Trump administration, a good bit of what I wrote related to children’s services, in particular foster care and adoption. You can read my comments here.
As I pointed out, the debate is one in which both sides contend that their position will best expand the pool of qualified potential foster and adoptive parents. On one side, the Family Equality Council supports broad anti‐discrimination rules so as not to “allow child‐placing agencies to reduce” that pool by turning away families. On the other hand, flat anti‐discrimination rules could force out some qualified conservative religious agencies, and some qualified parents could be lost with them.
Just as it would be a humanitarian calamity to lose gay adopters and fosterers – who have often been in the forefront of tough placements for kids who have few other options – so it would be a humanitarian calamity to lose conservative religious agencies many of which also have long track records of success and may bring special advantages such as an intimate bond with birthmothers thinking over the relinquishment of legal rights to their newborns. If conservative religious agencies are driven out, which children will wait longer for a family, or age out of the system without finding one?
These conflicting claims should, in principle, be open to quantitative empirical evaluation, yet arguments often go forward by bare assertion only. (So far as I can tell, in every state there are agencies that participate in public adoption and foster care placement that are happy to work with gay parents.)
That said, the liberal side has a good comeback regarding situations in which an agency may command a bottleneck or monopoly in the matching process. Because of those situations,
I do agree that there are very real problems with declaring (as some would do) an absolute and indefeasible right of religious agencies to 1) participate in public social services contracts and 2) follow conscience rules of their choosing while 3) being free from “adverse action” of any kind. For example, as of not too long ago it was reported that the state of Kansas contracts with exactly two (2) agencies to run its foster care system. If both of those agencies demand religious exemptions, is Kansas to grant both? Now you’ve got a placement problem in the other direction, because qualified families might have no way into the system. So I agree that … both for the sake of successful placement and for the sake of legal equality, a state can reasonably require that the overall mix of agencies provide opportunity to all. That is different from requiring that each individual agency offer universal service.
I go on discuss arguments based on mismatch between foster parents and children.
Sometimes it is argued that religiously conservative agencies must be curbed or excluded because they will be bad at handling the needs of particular children. An example often given is the placement of a child who is, or turns out to be, gay with religiously conservative parents.
It is important to note that conflicts of this sort will arise whatever decisions the law makes about working with religious agencies. .…A foster child may hold, or develop, religious views that clash with those of foster parents, and this can work either way: the parents may be more devout than the child, or vice versa. …
The last thing we should want is the promulgation of ideological screening tests for foster parents. …Instead, we can uphold the more limited and traditional message that a public foster care system has a legitimate interest in seeking harmonious rather than conflict‐ridden or alienating matches for each child.
More background in this excerpt from a Cato roundtable published at Cato Policy Report.
