Philadelphia case could have large implications for foster children in New York, state bar association says

August 21, 2020 Rob Abruzzese

The NYS Bar Association filed an amicus brief with the U.S. Supreme Court on Thursday in support of LGBTQ rights in the case of Fulton v. City of Philadelphia. Seen here is Scott Karson, president of the NYSBA. Photo: Brooklyn Eagle File

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Concerned that a Philadelphia case could have a large impact on children in foster care in New York, the NYS Bar Association on Thursday filed an amicus curiae brief with the U.S. Supreme Court to protect LGBTQ rights.

In the case Fulton v. City of Philadelphia, a foster mother is suing the city for terminating its foster care contract with the city’s Catholic Social Services agency because it will not place foster care children with married, same-sex couples; a violation of the city’s non-discrimination policy.

“The State Bar Association has a long history of promoting equality in the law for LGBTQ people in all aspects of society,” said NYSBA President Scott Karson. “A married same-sex couple is a legally recognized family, and NYSBA will continue to advocate to protect their rights.”

The city claims that the Catholic Social Services is not entitled to taxpayer money if it doesn’t comply with the requirement to accept all qualified families free from prohibited discrimination. Meanwhile, Sharonell Fulton, the foster mother, and the Catholic agency that won’t adopt to certain parents based on the person they are married to, claim their First Amendment rights are being violated.

“The Free Exercise Clause of the First Amendment provides critical protections to our faith-based institutions but it does not give them a license to discriminate when participating in generally available government contracts that require non-discrimination protections,” said Christopher Riano, chair of NYSBA’s LGBTQ People and the Law Committee. “LGBTQ couples represent a critical mass of foster parents, and antidiscrimination ordinances like the one in Philadelphia ensure that all qualified families can foster children.”

Riano explained that the U.S. Supreme Court previously ruled in the 1990 case Employment Division v. Smith that if prohibiting the exercise of religion is not the object of the law, but merely the incidental effect, then the First Amendment has not been violated.

In the amicus brief, the NYSBA took the position that the precedent in that case is a balancing tool in constitutional matters, and asked the court to retain the precedent from Smith. It also outlined problems a potential adverse outcome could have for New York State.

“The Court should consider that state and municipal governments around the country have relied on the rule established in Smith to craft laws that are premised on broad compliance by the public rather than individualized assessments of personal beliefs,” it said on page 10 of the brief.

Specifically, it pointed to 66 private foster care placement agencies in New York that work in conjunction with local social service departments that serve all 15,820 foster children. Eighteen of those agencies are religious-affiliated and in three counties in the state there are only religious-affiliated agencies.

They argue that if the court were to rule in favor of the Catholic social services agency, these 18 agencies could immediately begin discriminating against qualified families seeking to adopt children in foster care.