Setting the Record Straight: Fulton v. City of Philadelphia

This guest post was written by Professor David Smolin from Samford University’s Cumberland School of Law. Smolin is the Harwell G. Davis Professor of Constitutional Law and Director, Center for Children, Law and Ethics.

Setting the Record Straight: Fulton v. City of Philadelphia

By David Smolin

As an academic who studies adoption, foster care, and children’s rights—and an adoptive parent myself—I am a bit surprised by some of the rhetoric surrounding Fulton v. City of Philadelphia. Understandably, lawyers have to make legal arguments—but often what gets lost are important facts that provide the context necessary to understand and evaluate these legal arguments. This is an important Supreme Court case, but not for the reason that some seem to think. This case will not affect the ability of same-sex couples to foster or adopt anywhere in the Country(same-sex foster care is legal in all 50 states). But it will have an important impact on the number of agencies and foster families available to care for foster children nationwide. Here are the three biggest misconceptions I have seen in how this case is discussed.

#1: Foster care is primarily about the recruitment and certification of foster parents.

Philadelphia has tried to keep the focus on certification, but that’s only one part of a more complex puzzle. Lost in today’s  discussion is the fact that foster agencies provide ongoing support for the families that choose to partner with them—and that many families choose a particular agency because its services and support system are different from that of other agencies. Some agencies hire staff with language and cultural competences to better serve Latino communities. Some agencies participate in training programs and certifications to better serve LGBTQ couples, youth, and families. Some agencies recruit through churches and can provide emotional and spiritual support to foster families who want an agency that understands and affirms their deep religious commitments. Fostering in partnership with a private agencies is not “one and done”—it is an ongoing process. Burnout is high for foster parents; it’s an arduous and emotionally-draining undertaking. But families will stick with it longer if they have the training, support, options for respite care, and help they need. Agencies matter. They are not simply identical widgets churning out foster parents. They each play a unique role in a diverse, healthy child welfare system.

#2: Home studies require mere pro forma box-checking.

At oral argument in Fulton, the Supreme Court asked a few questions suggesting a misunderstanding of a foster care home study (the process by which families become certified to care for a foster child in partnership with a specific agency). For example, one Justice asked whether Catholic Social Services could certify foster parents without evaluating their marriage, while another asked whether Catholic Social Services could perform a same-sex home study but include a disclaimer expressing their disapproval of the relationship. I see several problems with this line of thinking.

First, home studies are far more personal, intimate, and invasive than most imagine. Social workers conducting home studies go far beyond inspecting the physical residence. Home studies focus on the relational aspects of a prospective foster or adoptive family, including the marriage or intimate partnership, relationships with children, extended family, community, friends—potentially even aspects of a couple’s sex life. “Sexual orientation cannot be ignored in the assessment process, because an individual’s sexuality is an aspect of who they are as a total person and will impact on their life as a parent.” (https://www.researchgate.net/publication/6301781_Assessing_lesbian_and_gay_prospective_foster_and_adoptive_families_A_focus_on_the_home_study_process)

Because foster children typically come from a background of trauma, a foster or adoptive home must be relationally solid enough to absorb the difficult behaviors common with traumatized children An in-depth evaluation is necessary to ensure that agencies are entrusting vulnerable children only to stable, safe, and emotionally healthy foster families. Anything less than a thorough evaluation could endanger foster children, and could put an agency’s license at risk—when a private agency approves a foster parent, it is “vouching” for that parent’s home, and adverse outcomes call the agency’s abilities and judgment into doubt.

For this same reason, the belief that if the government shuts down a faith-affirming foster agency, all its foster families would simply “transfer” agencies is misguided. There is potential loss and disruption to foster families in losing a trusted partner in their foster care journey and adjusting to a new social worker who doesn’t understand their case or their foster care history. The recognition that their agency has lost its role precisely because it adheres to a faith shared by the foster parents would create a disincentive to continue as a foster parent.

The process of recertification (by which a foster family may, in some cases, partner with a new agency) may also serve as an additional disincentive to continuing, even more so if foster parents fear that the same criteria applied to excluding their former agency will eventually be applied to them as foster parents. Hence, one cannot assume that all existing foster parents would go through this process of transferring and being recertified by a different agency. Losing any qualified foster parents would lead to placement disruptions and would harm the foster children in their care.

Second, asking objecting faith-based agencies to perform home studies for same-sex couples with a “disclaimer” stating that the agency doesn’t endorse the couple’s relationship is a non-starter.As explained in #1 above, when foster parents partner with a foster agency, this results in an ongoing relationship between the agency and the foster parents. Many agencies will regularly check in with their foster parents. It is crucial that this is a relationship of trust and support. Foster parents must feel comfortable talking frankly with their agency, flagging any potential problems, and asking for help when it is (inevitably) needed.

The idea that a couple would want to engage in a partnership with an agency that cannot affirm their marriage defies logic.Philadelphia even seems to understand this, telling prospective foster parents to find an agency that is the “best fit” for them.

#3: Alleged dignitary harms to adults are more important than the best interests of children.

Let me say this first: regardless of the outcome in Fulton, same-sex couples will still be allowed to—and encouraged to—foster and adopt in all 50 states. With that said, an undue focus on dignitary harms for foster parent applicants obscures what is in the best interest of foster children.

Philadelphia and the ACLU argue that the hypothetical referral of a same-sex couple from Catholic Social Services to another nearby foster agency (there are close to 30 private agencies in the City) justifies completely excluding this agency from the foster care system. This means that all foster families whopartner with Catholic Social Services will have to be recertified (see #2) and that Catholic Social Services’ decades of experience and unique ability to recruit foster families from Philadelphia’s Catholic community will be lost.

I see at least two problems with this argument. First, there are adult dignitary harm on both sides. The dignitary harm a same-sex couple might face from potentially being referred to another agency (remember, no same-sex couple had actually approached Catholic Social Services seeking to foster), or which occurs simply from knowing that Catholic Social Services is allowed to continue its historical role, is countered by the dignitary harm women like plaintiff Sharonell Fulton experienced when the city government told her that it was closing down the foster agency with which she has partnered for over 25 years. Knowing your agency was shut down because it shares your faith is also a dignitary harm.

Second, the government is placing these dignitary harms to adults above what is in the best interest of children—namely, to maximize the number of foster parents available to serve children in need. This misses the point of who a foster care program is meant to serve: children in need, not potential foster parents.

On this last point, I have not seen any convincing evidence that excluding faith-based foster care agencies increases the number of homes available for foster children in need. In fact, some evidence indicates that faith-based agencies can recruit families that others can’t and provide wrap-around support services which help foster parents serve longer. Much of this evidence is outlined in several Supreme Court amicus briefs, including my own.

What is more, result-orientated attempts to argue otherwise miss the mark. For example, two professors purport to find, based on “preliminary” analysis of data, and interviews with professionals perhaps selected or self-selected for sympathetic viewpoints,that excluding a faith-based agency in Boston did not have any negative effect on the child welfare system. Their eagerness to come to conclusions based on their admittedly “preliminary” analysis suggests that they began with a preferred conclusion and then went looking for data in support.

For example, as evidence they claim that the number of “days in care” (i.e. the total number of days a foster children spends in a foster home) “slightly decreases” after the agency was shutdown. Even assuming the numbers are accurate, a decrease in the number of “days in care” may be either a positive or a negative child welfare outcome. The number of “days in care”could drop because of a shortage of foster care parents to provide such care, because children are being returned inappropriately to abusive and neglectful homes, or because children “aged out” of foster care. It could also result from unrelated changes in the community, particularly because the result is one of “slightly” decreasing. Simply put, a decrease in “days in care” without more doesn’t tell us much of anything about the health of a child welfare system. No wonder this analysis was presented as “preliminary” by the authors. It is incomplete.

Even if one credited the authors’ conclusions, it is telling that they admit: “None of this is to say that things could not turn out differently in another context where a transition is managed less well.” This is quite an admission in a context where child welfare systems notoriously are not managed well, with the majority of states having experienced a federal court consent decree due to chronic mismanagement. One cannot count on a seamless and well-organized transition in child welfare systems which have been known to literally lose track of the location of children in care, with one study finding more than 60,000 children listed as missing in America’s child welfare system since 2000.

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Looking at Fulton from the perspective of what is best for current and prospective future foster children, it is easy to see why excluding faith-based agencies from the foster care systemsolely because of their religious objections to same-sex marriage is a bad idea. The child welfare systems in the United States arechronically overwhelmed and frequently mismanaged and need all the help available from diverse elements of society, including the religious agencies and persons who have throughout the history of the system provided critically important services and homes for children. In this context of constant crisis for America’s foster care children, valuing the dignitary interests of some (but not all) impacted adults, above the needs of traumatized, abused, abandoned, and vulnerable children, would be a tragically unjust choice.

​I would add, as I stated in the Statement of Interest in a Fulton amicus brief, that I support “both the inclusion of LGBTQ persons as foster and adoptive parents, and also … the inclusion of religious agencies and religious adoptive and foster parents, including those whose religious beliefs do not accept same-gender marriage.” America’s children really do need all of us, and the adults have to figure out a way to work together toward that end.