Supreme Court Ruling Puts Kids at Risk

Published in: November-December 2021 issue.


LAST JUNE, the U.S. Supreme Court ruled (in Fulton v. Philadelphia) that the city of Philadelphia must resume offering contracts to a religious organization that discriminates against same-sex couples seeking to adopt foster children. With this decision, the Court has authorized discrimination against LGBT people under the false pretext of “freedom to exercise religion.” The ruling holds that Catholic Social Services (CSS) is entitled to city funds despite their refusal to certify LGBT couples or families as prospective foster parents based upon their doctrinal opposition to same-sex marriage.

            Of course, the erosion of LGBT rights is coming with this new, extremely conservative Court, so this ruling is not entirely surprising. Still, as a lawyer who fights for foster children and their families and who routinely sees the desperate need for loving, committed partners to bring one of the 500,000 children in our foster care system into their homes, I am appalled. And as a father who’s currently fostering a twelve-year-old with my husband, I’m aghast that the Supreme Court made a decision that will undoubtedly lead to more of the most vulnerable kids in foster care going without stable, loving homes like the one that my husband and I have created.

            What’s so astonishing about this recent case is that up to now, the First Amendment did not permit discrimination in the public sector on the basis of religious beliefs. The basis of the city’s refusal to send cases to CSS and the appellate court’s affirmation of their decision was that it violates the nondiscrimination provision and requirements that the city enacted.

            There has been a storied history of cases in which religious organizations tried to use “religious freedom” to discriminate against African-Americans. This began to change only in the era of Thurgood Marshall, and the presence of a Black justice undoubtedly made a huge difference. This provides a strong argument for having an openly LGBT person on the Supreme Court. It’s an ambitious goal, but it seems to me this should be a high priority for the gay rights movement.

            In the meantime, hundreds of thousands of children in our foster care system are too often shuffled between temporary placements and group homes. Nearly 25 percent of children in foster care develop PTSD, nearly twice the rate of Iraq war veterans. Yet there are so many loving couples that are willing and ready to give them a stable and loving home. There are literally thousands of LGBT families who would open their homes to welcome a child who would otherwise be rejected by many heterosexual couples. Children are waiting for homes, and we are eager to welcome them.


Jay Paul Deratany, a Chicago-based attorney and child advocate, is the writer and producer of the filmFoster Boy (2019).



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