The Supreme Court’s opinion in Fulton v. City of Philadelphia, which held that a Catholic foster care agency could refuse to accept gay foster parents, and virtually all commentary on the case, are flawed by a profound misunderstanding of key aspects of the foster care system. The case’s role in the broader culture war between religious rights advocates and those supporting LGBTQ equality has led advocates on both sides to use Fulton for their own purposes at the expense of the families the foster care system is intended to serve.
This Article explains that the most important constitutional interests at stake in the foster care context are the right of parents to raise their children and the right of children to maintain their family ties when they are placed in foster care. Ignoring these rights led the Fulton Court and the litigants on both sides to misunderstand how foster care is a public accommodation (and therefore subject to certain nondiscrimination requirements). Properly understood, foster care is a public accommodation for foster children and—less obviously, but as importantly—their parents. The interests of potential foster parents are subordinate to the preeminent goal of the foster care system, which is maintaining family relationships whenever safely possible. Maintaining those relationships offers strong reason to allow foster care agencies to “discriminate” when they place a child in a foster home in the sense of selecting a foster home that will support the family, community, and cultural ties of the child.
As an exception to the longstanding constitutional commitment to keep government out of the business of child rearing, foster care is a site of grave danger of abuse of government power. No credible analysis of the constitutional interests at stake in the foster care system can be undertaken without considering the United States’ shameful history of violating the rights of marginalized families and illegally separating children from their parents and communities. This Article situates Fulton in that historical context and argues that, counterintuitively, conservatives seeking to protect religious minorities and progressives fighting structural racism in the child welfare system have a strong common interest in encouraging foster care placements that preserve family, community, and cultural bonds.
Introduction
The Supreme Court case Fulton v. City of Philadelphia1 has generated much heat over the rights of potential foster and adoptive parents. The Left says that LGBTQ couples have the right to be certified as foster or adoptive parents by the agency of their choice.2 The Right says that foster and adoptive parents have the right to work with religious agencies that discriminate on the basis of sexual orientation.3 The debate is striking for the extent of misunderstanding it reveals about the child welfare system. Partisans on both sides and the Court entirely miss that foster parents’ rights in this context are entirely secondary to the rights of those the foster care system is meant to serve. Foster care is not a public accommodation offered to potential foster and adoptive parents. Foster care is not for foster parents. It is a public accommodation for foster children and—less obviously, but as importantly—their parents.
The primary goal of the American child welfare system, as articulated in federal statutes, state statutes in every state, and extensive case law, is to protect children from harm by supporting their safety while they remain with their parents whenever possible and, if they need to be separated, to proactively work to return them to their families as quickly as safely possible.4 The right of parents to raise their children is one of the oldest and least contested rights protected by the Constitution, and the authority of government to intervene in parent-children relationships is strictly limited.5 The jurisprudential origins stress that parents’ rights to direct their children’s upbringing is critical to the Constitution’s commitment to protecting pluralism.6 Many would persuasively argue that these rights belong not only to parents but also to their children, who have the right to be raised by their parents whenever safely possible and, when not safely possible, to remain connected to their families and communities of origin.7
Given that the foster care system is supposed to be designed as a system of temporary placement for children with the aim of reuniting families whenever possible,8 it should be highly concerning that the foster children’s parents were entirely absent from the Fulton lawsuit. This omission is a sign that many misunderstand the foster care system’s preeminent purpose and undervalue the parent-child relationships of the low-income families who overpopulate that system. It is, of course, not a tangential point that these families are disproportionately families of color.9 It is unimaginable that these families would be treated as they are if the system interacted primarily with more privileged communities. Any responsible analysis of the competing interests at stake in foster care must grapple with the United States’ disturbing history of violating the rights of families from marginalized communities and illegally separating them.10
The needs of foster children were discussed by the Fulton parties (and numerous amici), but the discussion was striking for what it left out. The discussion of their interests talked about the children as if they come to foster care as free-floating individuals unconnected to families or communities. At times, the rhetoric surrounding the case even veered offensively toward the suggestion that the foster care system exists to provide children to couples seeking to adopt.11
Notably, the most important case about the constitutional constraints on religiously-based foster care agencies—the 1970s class action suit Wilder v. Bernstein12—was absent from the discussion around Fulton and is not mentioned once in the 110 pages of opinions issued in the case. And the decision in Fulton stood in striking contrast to the only other case in which the Supreme Court has discussed a claim of foster parents’ rights. The decision in Smith v. Organization of Foster Families for Equality and Reform (OFFER)13 provided a robust description of the constitutional issues at the heart of foster care, centered the importance of family integrity, and considered the complex policy choices underlying the foster care system. In particular, the OFFER Court was concerned about the dangers inherent in the use of state power to separate families.14 Fulton, in contrast, said little about the foster care context of the case, and nothing aimed at stanching the dangers of abuse of state power with respect to the families the foster care system serves.
In the end, the Court dodged for now some of the tougher questions raised in Fulton, but as Justice Alito explains in his concurrence, it is not only a foregone conclusion that the question of whether a government contractor can violate an antidiscrimination law will come back to the Court, it may well come back with the same litigants.15 For that reason alone, it is important to understand the failure of the discussion surrounding Fulton to grasp the essential character of foster care and the rights of the families it is meant to serve. And regardless of the future of these particular litigants, the case has highlighted the need to clarify the constitutional principles at stake in the regulation of foster care. Foster care is life-altering to the children who enter it and to the parents left behind. It is also a critical touchpoint for broader constitutional limits on government authority to intervene in intimate relationships.
This Article will argue that when the child welfare system separates children from their parents, there are strong interests that require maintaining the family, community, and cultural ties of the children who enter foster care. Those interests, particularly viewed in light of the past and current structural racism of the foster care system, provide strong justifications for “discriminating” in the selection of foster parents in the sense of preferring foster parents from the communities from which foster children come. These interests may or may not be dispositive when weighed against competing concerns, but they surely should be considered in formulating child welfare law and policy. Indeed, the justifications for maintaining the community and cultural ties of the children who enter foster care rise to the level of constitutional interests and lead to what may seem a counterintuitive take on the rights at issue in Fulton.
Little attention has been paid to how dramatic a shift occurred among progressive advocates in the years between Employment Division, Department of Human Resources of Oregon v. Smith (Smith),16 where they, along with the leading liberals on the Court, sought to defend the rights of religious minorities, and Fulton, where progressives favored imposing a majoritarian rule on a religious minority.17 That shift may well be justified, but its consequences should be understood. Failing to consider the consequences of this shift as they affect foster care led progressive advocates to fail to recognize the tensions between their position in Fulton and the most compelling contemporary progressive critiques of foster care. As a result, it went unnoticed that religious minorities and those fighting structural racism in the child welfare system may share a strong interest in encouraging diversity among (rather than within) foster care agencies.
This Article will revisit and sharpen the preeminent concerns and constitutional commitments that should guide any discussion of foster care in the Supreme Court. It will proceed in five parts. Part I situates Fulton with respect to the foster care system. Part II discusses several critical aspects of foster care that were ignored in discussions of Fulton, including the system’s overarching goals as they relate to the role of foster and adoptive parents, the fundamental rights of parents to raise their children, and the related constitutional interests in pluralism and privatized parenting. This Part explains that these rights and interests cannot be meaningfully protected without situating them in the history of the American child welfare system and understanding the specific, well-documented dangers that have threatened these rights and interests. Part III discusses what the Fulton Court got right and what it got wrong in its analysis of foster care as a public accommodation, and the relevance of the seminal foster care case Wilder v. Bernstein to that analysis. Part IV discusses the striking lack of nuance in Fulton’s discussion of foster care and the dangers of the narrative choices of the decision, particularly as contrasted to the rich discussion of foster care in OFFER. Part V argues that the constitutional interest in pluralism at stake in the foster care arena raises several questions that were ignored in Fulton by the litigants, amici, and the Court. It explains how recent critiques of the child welfare system underscore the importance of centering children’s familial and community attachments and argues that those who oppose exceptions to antidiscrimination requirements in the foster care context should take care not to create unjustified barriers to foster care services that serve these progressive values. This Part concludes by explaining that another case involving discrimination by foster care agencies would not be an appropriate vehicle for revisiting the questions of whether Smith should be overturned and, if it is overturned, what should replace it.
Whatever other roles Fulton plays in constitutional jurisprudence, it is a case about foster care, and foster care deserved more attention in the decision and the coverage of the decision than it received.
I. Fulton and Foster Care
Fulton v. City of Philadelphia is a case enmeshed in the foster care system, though its motivations were clearly generated outside that system. It was well understood by the litigants and court observers that Fulton was a single battle in a broader cultural war over how to balance LGBTQ rights against claims by religious minorities of a right to refuse to treat LGBTQ individuals equally with others.18
The lawsuit was filed against the City of Philadelphia by Catholic Social Services (CSS) and three foster parents, who claimed the City had violated their First Amendment rights when it decided to stop referring children to CSS’s foster care program due to its policy of not certifying same-sex couples as foster parents.19 CSS was one of numerous private foster care agencies with which Philadelphia contracted to provide foster care for children who had been removed from their parents by state officials. It was undisputed that no same-sex couple had been turned down by CSS.20 The controversy that led to the case began with a 2018 article in the Philadelphia Inquirer, which reported that two of Philadelphia’s contract agencies had policies of refusing to certify same-sex couples as foster parents.21 In the wake of the article, the City closed down referrals of foster children to those two agencies and announced that it would not renew contracts with them unless they ended their discriminatory policy.22 One of those agencies, CSS, and three foster parents who had been certified by CSS sought a federal injunction directing the City to restart referrals of foster children to the agency, while allowing it to continue to refuse to certify same-sex couples. The plaintiffs asserted that refusing to certify same-sex couples was an exercise of religious liberty based on the religious belief that marriage is between a man and a woman. They argued that it is a violation of free exercise to deny them their longstanding role as foster care providers for exercising their religion in this way and a violation of their free speech to condition their ability to provide foster care on making what they viewed as a statement of endorsement of same-sex couples.23
The district court denied preliminary relief, holding that the City had acted lawfully under Smith, which allows infringement on religious exercise if the infringement results from a neutral and generally applicable law; the Third Circuit affirmed.24 The Supreme Court granted certiorari on the questions of whether the City’s actions were allowed under Smith and whether Smith should be reversed.25
Many expected the Court to use Fulton as the vehicle to overturn Smith and expand the realm of cases in which strict scrutiny is applied to claims of religious discrimination—and that certainly was the hope of CSS26 and its supporters.27 The Court, however, declined to take that step, finding it did not need to reach the question of whether to overturn Smith because it held that the antidiscrimination provisions the City applied to CSS were not generally applicable, making Smith inapplicable.28 Without Smith governing, strict scrutiny applied, and the Court held it was an unconstitutional constraint of CSS’s religious liberty to force them to choose between keeping their policy about same-sex foster parents or keeping their foster care program.29
In declining to revisit Smith, the Court indicated it was likely to return to the question soon, with three Justices saying they were ready to do so and two others expressing skepticism that Smith was rightly decided.30 There is little doubt that another challenge to Smith is not far in the future.31 In his concurrence, Justice Alito anticipated that the question may even be brought back to the Court again by the same Fulton litigants because the peripheral issues that allowed the Court to avoid the central Smith question could be shed.32
In putting off the question of reconsidering Smith, the Court condemned Fulton to having a relatively unimportant legacy; in all likelihood, the case’s greatest significance will be as a steppingstone on the path to the Court’s ultimate post-Smith approach to free exercise. Yet, despite its likely long-term insignificance, Fulton offers an important opportunity to consider the profound constitutional aspects of foster care from the highest vantage point because so few cases bring the subject to the Supreme Court.33 Unfortunately, upon examination, most of what the case demonstrates is widespread indifference to and misunderstanding of the constitutional concerns that arise when the State puts children in foster care. These issues are well worth attention whether or not they come to the fore in a Fulton II as predicted by Justice Alito. Understanding the constitutional issues that are inevitably at play in the foster care context would be critical to a Fulton II and might well, as discussed below, provide strong reason to avoid a Fulton II.34 As importantly, these constitutional issues are relevant to decisions affecting children and families made by executive branch officials and family and dependency courts around the country every day.
Before turning to the specifics of what the Fulton Court and litigants said—and notably did not say—about foster care, it is useful to start by reviewing some basic, and yet too-often ignored, aspects of the purpose and structure of the foster care system and the profound constitutional issues that arise when the government separates children from their parents.
II. The Relevant Context of the American Foster Care System
A. The Primary Goal of the Foster Care System Is Family Reunification
The American child welfare system has grown dramatically in the past fifty years. Though the number has come down from its peak, there are over 420,000 children in foster care in the United States today.35 This number represents the most visible part of the child welfare system but only a fraction of the number of children and families who interact with this system each year. Over a third of American children are subjected to child maltreatment investigations.36 The vast majority of the families involved are low-income, with Black and Native American families significantly overrepresented.37 A shocking 53% of Black children’s parents are investigated by child welfare officials at some point.38
The primary articulated goals of the modern American child welfare system are to protect children from abuse and neglect and, whenever possible, to do so by proactively providing support that will allow them to remain safely with their families. These goals were enshrined in the first federal child welfare legislation, which stated in the 1970s that “national policy should strengthen families to prevent child abuse and neglect, provide support for needed services to prevent the unnecessary removal of children from families, and promote the reunification of families where appropriate.”39 They were reiterated when Congress enacted the Adoption Assistance and Child Welfare Act of 1980,40 which required as a condition of federal foster care funds that states provide “reasonable efforts . . . to prevent or eliminate the need for removal of the child from his home, and . . . to make it possible for the child to return to his home.”41 Even when Congress enacted the Adoption and Safe Families Act of 1997, which shifted policy toward increasing adoptions of foster children, it reiterated that children should be kept with, or returned to, their parents when safely possible.42 In 2018, Congress further emphasized the goal of family preservation by passing the Families First Act, which provides additional funding for services aimed at keeping children with their families.43 Every state has passed implementing legislation that embeds these goals in state law.44
Foster care is intended to be temporary, and most often, it is relatively short-term, with 40% of children who enter foster care leaving in less than a year and roughly 70% leaving in under two years.45
In order to prevent children from lingering in foster care, federal law requires that courts identify and regularly review a “permanency plan” (the exit goal) for each case.46 For the majority of children in foster care, the permanency goal is reunification with their parents.47 The federal funding appropriated for foster care is uncapped, but the funding is provided only for cases in which the State made reasonable efforts to avoid the need for removal, and is cut off if, after a child goes into foster care, the State does not make reasonable efforts to achieve the permanency goal.48 In other words, although there is no limit to the amount of federal funding a state can receive for foster care, it will only receive the funding if it proactively supports family reunification, unless and until a court makes a specific determination to shift away from the preferred goal of reunification.
This policy is consistent with the strong parental rights protections provided by the Constitution49 but goes well beyond what is constitutionally required; it reflects a considered view that keeping families together is not only a matter of negative rights but a value that should be proactively pursued. As New York’s highest court put it: “One of the fundamental values in our society is that which respects and fosters the relationship between parent and child. Thus, our [termination of parental rights] statute reflects a cultural judgment that society should not terminate the parent-child relationship unless it has first attempted to strengthen it.”50 One adoption organization put it succinctly:
Reunification with birth parents has consistently remained the primary permanency plan for children in foster care. Our child welfare system recognizes that children have a right to be raised in their families of origin if they can be safe in that environment, and designed a system to support that value.51
This longstanding policy commitment has been buttressed in recent years by empirical evidence of the harms of family separation and foster care52 and, in particular, by recognition of the profound racial harms of foster care.53 Studies show that family separation causes trauma54 and that foster care leads to worse outcomes on virtually every socioeconomic measure.55 In the wake of renewed attention to racial justice, a stream of political and policy leaders, including, among many others, the Biden Administration, the American Academy of Pediatrics, and leading children’s advocacy organizations, have acknowledged that the child welfare system has unnecessarily separated families—Black families in particular—and renewed calls to avoid family separations and more aggressively support reunification.56
B. The Role of Foster Parents and Foster Care Agencies in Supporting Foster Children’s Familial Bonds
Because foster care is designed to be temporary, and the favored outcome is reunification of foster children with their parents, foster parents have a specific role and set of obligations related to supporting parent-child bonds and reunification. Even when a foster care case leads to adoption, there are strong arguments that the foster-turned-adoptive parents have obligations to support the child’s familial bonds and cultural connections. This Section will discuss three aspects of foster parents’ obligations to support the connections children have when they enter foster care: (1) the obligation to actively support family reunification; (2) the obligation to maintain the child’s ties to her family of origin after adoption or guardianship is granted to the foster parent; and (3) the obligation to support ties to the child’s community of origin after adoption or guardianship is granted to the foster parent.
1. A Key Aspect of the Foster Parent’s Role Is to Support Children’s Relationships with Their Parents and Actively Work Toward Family Reunification
Foster parents have a highly qualified form of custody that is dramatically different from a parent’s legal rights.57 A foster parent has a contractual relationship with a child welfare agency, and the care that foster parents provide children is subject to extensive regulation and monitoring.58 Children are typically placed in foster care only if their family home is found to be unsafe.59 Upon such a finding, courts give child welfare agencies temporary custody of the children, and the agencies contract with adults in the community to take the children into their homes on terms set by the agencies.60 Before they may be given temporary care of a child in foster care, the adults must be certified as suitable to the task. The certification and supervision of the foster homes is done by government child welfare agencies in some jurisdictions and, in other jurisdictions, by private agencies (such as the agency in Philadelphia, CSS, whose practices were at issue in Fulton).61 Among the many terms of the contractual arrangement are financial payments to foster parents while the child is in their care62 and, importantly, the obligation to return the child to the agency upon demand.63
Under the contracts, foster parents are required to provide safe care that meets the foster children’s needs, including their physical, educational, and emotional needs.64 Typically, supporting the children’s connections to their parents is critical to meeting the children’s emotional needs.65
Beyond the obligation to support foster children’s relationships with their parents because of their importance to the children’s emotional wellbeing, foster parents are also required to assist the agency in its obligation to proactively work with parents to achieve family reunification, if possible, by supporting the parent-child relationship and addressing the issues that led to the foster care placement.66 As one best practice guide put it, when recruiting foster parents, “it is critically important to fully address the importance of foster parents’ role in reunification. . . . [and] effectively position foster parents to help work toward reunification.”67
One important component of ensuring that the parent-child bond is sustained during the foster care placement is ensuring frequent visitation between children and their parents. As the federal agency that oversees foster care has explained:
Youth in out-of-home care . . . especially need to stay connected with their birth parents and other family members to maintain the integrity of these relationships when they return home. Foster parents, in particular, play a critical role in cultivating relationships with birth parents to support child and parent visitation and contact and increase the likelihood of successful reunification.68
Best practices now include frequent visits in settings maximally conducive to parent-child interactions.69 Once only expected to provide transport, foster parents today are expected to actively help children prepare for and process the emotional challenges of family visits70 and sometimes host visits so they can be moved out of agency offices.71
The foster parent’s role in sustaining children’s ties to their parents has been expanded in other ways as well, including actively engaging with parents as partners, mentoring them when helpful, and supporting their efforts to reunify with their children.72 The best vision of the proper role of modern foster parents is as “an engaged member of the team working toward reunification . . . . embrac[ing] the approach of shared parenting, and . . . committed to building a positive, child-focused relationship with the birth family.”73
In short, in order for the foster care system to achieve its aim of reunifying children with their parents whenever possible, the modern child welfare system relies upon foster parents to become active supporters of reunification as a key part of their role. Building strong, constructive relationships between parents and foster parents is therefore a critical component of serving foster children.
2. Foster Parents Are Obligated to Support Parent-Child Bonds Even When the Permanency Goal Is Not Family Reunification
a. The Child Welfare System’s Turn Toward Adoption
Although family reunification remains the preferred outcome of foster care, since the 1997 passage of the Adoption and Safe Families Act (ASFA), American child welfare policy has also emphasized pursuing adoption when children have been in foster care for a certain length of time.74 Thus, to fully understand the role of foster parents with respect to birth parents, one must also consider their obligations when the permanency goal is not reunification.
ASFA was intended to address the problem of children lingering in foster care when reunification was not viable.75 Under ASFA, states are required to hold regular court hearings (called “permanency hearings”) to monitor foster care placements and encourage discharge planning.76 Courts must review whether reasonable efforts have been made by the child welfare agency to achieve the discharge goal (called the “permanency goal”) and assess whether the goal should be family reunification or something else.77 If a child has been in foster care for fifteen out of the last twenty-two months, the agency must consider filing a termination of parental rights petition and moving toward adoption.78 If parental rights are terminated and a child is adopted, Title IV-E of the Social Security Act provides subsidies to the adoptive parents.79 In addition to requiring states to consider moving toward adoption once a child has been in foster care for fifteen months, ASFA encourages agencies to engage in concurrent planning,80 which includes working toward family reunification while placing children with foster parents who would adopt them if reunification does not occur. As a result of ASFA, the United States now terminates parental rights at an unprecedented rate and provides ongoing subsidies for over 469,000 adoptions.81
It is in part because of the child welfare system’s shift in emphasis toward adoption that battles against anti-LGBTQ discrimination have come to focus on foster care. In the wake of ASFA, more than one in three children adopted in the United States is adopted out of foster care.82 Unsurprisingly, gay couples are far more likely to want to adopt than non–gay couples,83 and combatting laws and policies that forbid adoption by gay couples has been a critical component of the fight for LGBTQ liberation, dignity, and equality. As gay rights have advanced and more LGBTQ people have looked to adopt children from foster care, attention to antigay discrimination by foster care agencies has grown.84
It is to be expected that, in approaching discussions about discrimination in foster care, advocates draw on prior experiences fighting for LGBTQ rights and on the impressive array of case law and statutes that have been developed in recent decades to protect those rights. It is notable, however, that LGBTQ rights advocates have not—at least in efforts around the Fulton litigation—paid any meaningful attention to the significant differences between adoptions from foster care and private adoptions.85
To understand the issues at stake in Fulton, it is important to see that for children adopted out of foster care, relationships with their birth parents remain critical. Many of these children are strongly bonded to their birth parents and protecting those relationships may require very different approaches when adoption is involuntarily imposed by the State in the foster care context than when birth parents voluntarily give up their child for adoption.
b. The Turn Toward Open Adoption
A growing consensus in the social science literature over several decades supports the conclusion that it is harmful to children to treat adoption as a simple replacement of one family by another, thereby ignoring the complicated emotional attachments children have to their families of origin.86 Research has shown that openness about where and who adoptive children come from is critical to their wellbeing and that it is most often beneficial for all involved for children to have contact with their birth parents following adoption.87
According to one well-respected, national adoption advocacy organization:
[O]penness in adoption is a healthier and more humane way to experience adoption and should be incorporated into every adoption experience. Building relationships between first/birth family members and adoptive family members through openness in adoption may not always be easy, but it creates a richer and more authentic adoption experience.88
This understanding, along with rejection of the idea that adoption is shameful and should be hidden, has led to substantial change in adoption practices. For instance, there has been a concerted push to open adoption records so that adopted children can find their birth parents.89 Most notable for the current analysis has been the advent of open adoption. Over a relatively short period of time, the private adoption world has shifted from the practice of entirely cutting off adopted children from their birth families, to encouraging open adoption.90 Today, it is estimated that over two-thirds of private adoptions (those in which the children are not being adopted out of foster care) are open in the sense of having ongoing contact between the adopted children and their parents of origin.91
It is troubling that these insights about the importance of attachment to families of origin and the benefits of ongoing contact after adoption have not yet been fully incorporated into practice in the child welfare realm. Too often, foster care agencies still seek to sever all contact between adopted children and their families of origin.92 A “child saver” mentality in the child welfare system has unfortunately often viewed children’s interests as being opposed to their parents’ interests and ignored the psychological impact on children of treating their origins as something negative that must be escaped.93 Professor Annette Appell has persuasively challenged what she calls “the myth of separation,” which is the idea “that children can be fully and existentially separated from their parents” and that “parents are fungible” in the sense that an adoptive parent can replace a birth parent.94 She explains that “children have deep and abiding interest in their birth relations,” even if they are in long-term, pre-adoptive foster homes.95
Fortunately, the child welfare system’s longstanding hostility to birth parents has begun to shift—in part because the ideas and evidence about child wellbeing developed in the private adoption world are being imported into the public adoption realm, and in part because the system’s racism is being recognized and called out.96 The federal government’s latest guidance on permanency for children in foster care emphasizes the importance of maintaining children’s ties to their families and communities of origin following adoption, explaining: “adoption should be viewed as an opportunity to expand a child’s experience of family rather than replace their previous family.”97 The guidance urges states to encourage continued contact between adopted children and their families of origin: “Children do not need to have previous attachments severed in order to form new ones. In fact, they will be better positioned to develop new relationships if we work to preserve their original connections, sparing them from additional grief and loss.”98 Recognition of the importance of preserving family bonds has led some states to allow judges to order ongoing visitation with parents even as parental rights are terminated.99
Antipathy toward birth parents certainly continues, and there is much work to do to fully incorporate into practice insights on the importance of maintaining ties with families of origin post-adoption. But there is one way in which the child welfare system has embraced these insights: by prioritizing foster care placements with relatives. Kinship foster care has grown dramatically as the child welfare system has recognized its benefits to children.100 It is broadly acknowledged that “[k]inship care helps children maintain familial and community bonds and provides them with a sense of stability, identity, and belonging, especially during times of crisis. Kinship care also helps to minimize the trauma and loss that accompany parental separation.”101 Additionally, empirical evidence demonstrates that kinship placement serves the interests of foster children by achieving better behavioral and mental health outcomes for them.102
The preference for kinship care is now embedded in federal law, which conditions federal funding on a requirement that states consider placement with relatives whenever children enter foster care.103 Today, nearly one-third of all children in foster care are with relatives who have been certified as foster parents (compared to 23% in 2003).104
This widespread commitment to kinship placements cannot be separated from the broader value of keeping children connected with their families of origin whenever possible. Thus, it is a mistake to believe that because some foster care placements end in adoption, those placements can be made without considering the relationship between the foster parents and the birth parents. In the vast majority of cases, a constructive relationship between the foster parents and the birth parents is a prerequisite to serving the children’s best interests—in order to promote family reunification when possible and to offer those children who are adopted the best support for ongoing contact with their families of origin.
c. Foster Children’s Connections to Their Parents Are Important for All Permanency Outcomes
Approximately half of foster children will return to a parent or parents, and approximately 37% will be adopted or discharged to guardianship.105 Perhaps counterintuitively, maintaining connections between foster children and their parents is especially important in situations in which foster children will not be discharged to their parents, and adoption and guardianship are not options. A disturbing number of foster children whose legal connections to their parents have been terminated are never adopted.106 The United States has essentially created a new status for youth, making them legal orphans by terminating their parents’ rights without connecting them to another family.107 While the exact number of youth who leave foster care as legal orphans is difficult to pinpoint, it is certainly in the thousands each year.108 For these young people—many of whom will have no resources other than their families after they leave foster care—maintaining relationships with their birth parents after termination of parental rights can be particularly critical.
Although statistics are not available on how many legal orphans return to live with their parents, it is certainly a significant number.109 To create a legal mechanism to facilitate these reunifications and encourage others, many states have passed statutes over the last decade allowing the restoration of parental rights.110 Other families de facto reunify without seeking a legal blessing.111 Unless the child welfare system is content to doom some of its graduates to leave foster care without any familial ties or other support, it must protect the connections that foster youth have with their families of origin.
And there is yet another category of cases to consider when assessing the importance of supporting foster children’s family ties: children who are placed for adoption but leave their adoptive families and ultimately return to their families of origin.112 This number is also difficult to pinpoint, but there is evidence that foster care adoption placements are substantially more likely to splinter apart than private adoption placements, with estimates placing the percentage of adoptive placements of foster children that disrupt as high as 20%.113 Again, families of origin are often the only resources for these young people.
Thus, across the spectrum of outcomes for foster children, it is impossible to serve their best interests without appreciating the ongoing importance of their relationships with their families of origin. These relationships carry significant emotional weight, play a central role in identity development, and are critical to successful outcomes in the vast majority of foster care cases.114 Hopefully it is clear that the importance of families of origin does not diminish the emotional significance of the relationships between children and their foster and adoptive parents. Rather, the point is to see that foster and adoptive parents are entering the lives of children who have existing relationships with their parents and extended families. These ties are important enough that they should be taken into account when foster parents are chosen.
3. Foster Parents’ Obligations to Maintain Foster Children’s Cultural and Community Ties
This Section sets forth the argument that, in addition to their obligation to support foster children’s ties to their families, foster parents are also obliged to support foster children’s ties to their cultures and communities of origin. There are at least three types of interests that might be said to create obligations to maintain the community and cultural ties foster children have when they enter foster care: the interests of the individual children involved; the group-based interests of the communities; and the distinctly American interest in the constitutional value of pluralism.
a. Foster Children’s Interest in Maintaining Cultural and Community Ties
The most obvious interest favoring the maintenance of cultural and community ties are the interests of the individual children involved. Part of that interest, of course, stems from the fact that most of these children will return to their families and therefore to their communities of origin. Yet even children who will not return to their families have an interest in maintaining their cultural traditions and connections. This broadly held view is captured by the North American Council on Adoptable Children’s position that “every child should be placed with a family who recognizes preservation of the child’s ethnic and cultural heritage as an inherent right.”115 Some states explicitly embed in state law the right of foster children to maintain their cultural connections; others strongly encourage foster parents to support those connections.116
Although the interest may not be as strong with respect to infants who do not yet have substantial lived connections to any culture or community, there has been a shift toward recognizing that cultural heritage is a social good and that the interest in developing cultural connections begins at birth.117
Beyond this notion of intrinsic value in connection to one’s cultural roots, some argue that there are distinct harms to children if they lose connection to their group of origin.118 These commentators assert that “[t]he role that strong cultural identity plays in mental health, self-esteem, and over all well-being cannot be ignored” and note that “[s]trong cultural identity [has been reported to] contribute[] to mental health resilience, higher levels of social well-being, and improved coping skills,” and is “tied to lower rates of depression, anxiety, isolation, and other mental health challenges.”119
With respect to race in particular, some argue that placement with foster parents of another race presents a risk to children because they will lose the opportunity to learn social skills critical to effectively navigating racial dynamics in the United States. For example, in discussing the needs of foster children, Professors Sandra Stukes Chipungu and Tricia B. Bent–Goodley argue:
The impact of racism and discrimination, and the need to develop skills for negotiating a sometimes hostile social world, distinctly shape an individual and cannot be discounted. For example, the ability to function “biculturally”—that is, within the larger society as well as within a specific community—is an important survival skill for children of color. Communities of color teach children how to negotiate being bicultural in a healthy and safe manner. The skill can be significantly difficult to acquire outside the community.120
In a broader context, the interest of children in maintaining cultural and community ties is recognized by the United Nations Convention on the Rights of the Child,121 which though not legally binding on the United States, certainly reflects a widely shared understanding of this interest.122 While within the United States and internationally there is heated debate over whether racial and ethnic matching is desirable in adoptive placements, supporting connections between adopted children—including those adopted in infancy—and their cultures of origin has been embraced as a core value of adoption policy.123 This is based in part on a growing social science literature documenting that the opportunity to explore and connect to one’s cultural origins can be critical for identity development.124 One need not undervalue transracial or transcultural adoptive families to embrace the value of supporting adopted children’s ability to connect with the communities into which they were born.
b. Group-Based Interest in Maintaining Foster Children’s Cultural and Community Ties
Distinct from the interests of individual children, there is a group–based interest in foster children maintaining cultural and community ties. This interest can be seen as both the affirmative interest in retaining members born into a group to support the growth, vibrancy, and perhaps even survival of the group, and as an interest in avoiding the negative effects of treating certain groups as less worthy of raising children than others.125
In particular, Dorothy Roberts has persuasively argued that the racial disproportionality of the foster care system is not only a reflection of anti–Black racial injustice but actively “reinforces the continued political subordination of [Black people] as a group.”126 Roberts identifies two aspects of this harm. First, she explains the direct political consequences of systematically taking children away from a marginalized group into which they were born: “Family and community disintegration weakens [Black people’s] collective ability to overcome institutionalized discrimination and work toward greater political and economic strength.”127 Second, by routinely and disproportionately taking children from the parents in certain groups, the child welfare system reinforces negative stereotypes, building the sense that Black parents are incapable of raising their own children.128
The group-based interest in keeping children connected to their cultural heritage was most famously articulated by the National Association of Black Social Workers (NABSW), who strongly denounced transracial adoption in 1972.129 The organization described the harm to Black children of being raised by white parents, and was widely understood to have called transracial adoption “cultural genocide.”130 The term “cultural genocide” is a complicated one that is not always used literally to refer to a threat that a culture will be extinguished.131 In this context, the phrase captures the view that removing children from their community of origin and placing them with parents of a different race poses a significant threat to the Black community.
NABSW subsequently softened its position on transracial adoption, though it continues to recommend that Black children be placed with Black families whenever possible.132 In their position statement on kinship foster care, the organization not only describes the benefits of kinship placement to individual children but also situates those interests in African American history in a way that suggests a group-based interest as well.133
The issue of transracial adoption is complex and remains strongly contested among child welfare practitioners, as seen in the debates around the Multi-Ethnic Placement Act (MEPA).134 Passed in 1994, MEPA conditioned federal funding on prohibiting states from categorically denying people the opportunity to become foster or adoptive parents on the basis of race, color, or national origin and from delaying or denying a placement solely based on race.135 When first passed, MEPA explicitly allowed states to take into account the race, color, or national origin of a child when determining what placement was in a child’s best interests, so long as other factors were also considered.136 Then, in 1996, MEPA was amended by the Interethnic Adoption Provisions of the Small Business Job Protection Act to omit that provision and to prohibit states from “delay[ing] or deny[ing] the placement of a child for adoption or into foster care on the basis of the race, color, or national origin of the adoptive or foster parent, or the child involved.”137 In 2021, legislation was introduced that, if passed, would reinstate the provision explicitly allowing consideration of race, color, and national origin as factors in placements.138 Whatever comes of this proposal, it is fair to say that while MEPA ostensibly prioritizes individual children’s interests (in speedy placement) over group-based interests,139 it does not reject the idea that there are group-based interests at play. Moreover, MEPA is consistent with the idea of group-based interests in the placement of children insofar as it requires states to “provide for the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the State for whom foster and adoptive homes are needed.”140
There is much to be said about the debate over transracial adoption that is beyond the scope of this Article. For the analysis here, it is sufficient to see that, while some commentators vigorously oppose consideration of race in adoption placement and prefer what they view as a “color-blind” approach,141 many others recognize a group-based interest in protecting the racial and cultural connections children have when they enter foster care.142 Certainly, the strong and growing support for placing foster children with relatives whenever possible discussed above143 is consistent with recognition of both the individual and group–based interests in maintaining foster children’s community ties.
Finally, no discussion in this country of the group-based interest in maintaining the cultural ties of foster children can ignore the most blatant example of group-based harm inflicted by the American child welfare system: the long and appalling history of attempting to sever the ties of Native American children to their cultural heritage.144 That history will be discussed below. For this Section, the point is simply that it is indisputable that the child welfare system’s disrespect for the cultural ties of Native Americans not only harmed countless individual Native American children but also inflicted significant group-based harm. In this history, the threat of cultural genocide has been literal.
c. Constitutional Pluralism Interests in Maintaining Foster Children’s Cultural and Community Ties
The third type of interest that can be said to create obligations to maintain foster children’s community and cultural ties is society’s broader interest in protecting pluralism. A core value of American democracy, the interest in pluralism has been given constitutional protection. Though perhaps more frequently associated with freedom of speech and freedom of religion,145 the value of pluralism in American constitutional analysis is just as integral to understanding parents’ rights and the foster care system.146 Indeed, parents’ rights and religious rights are inextricably intertwined in constitutional jurisprudence.
In Meyer v. Nebraska147 and Pierce v. Society of the Sisters,148 the earliest Supreme Court decisions to establish the fundamental “liberty of parents and guardians to direct the upbringing and education of children,” the Court concluded that “[t]he child is not the mere creature of the state.”149 These parental rights were not initially based on the idea—introduced in later constitutional jurisprudence—that parents generally act in children’s best interests. Rather, parents’ rights were grounded in protecting against the danger “of the state to standardize its children.”150 The underlying constitutional value in these cases is pluralism, and the grave danger the Constitution guards against is what the Court describes as the understandable impulse “to foster a homogeneous people” by impinging on parents’ rights to direct the upbringing of their children.151
Notably, in Meyer, the Court emphasized the constitutional value of pluralism by contrasting American commitments with Plato’s ideal of children raised communally.152 The analogy to totalitarianism was, of course, not far below the surface, and the Court explained that “to submerge the individual and develop ideal citizens” is an approach to “the relation between individual and state [that is] wholly different from those upon which our institutions rest.”153 In other words, the Constitution places the rights of child rearing with parents to ensure that they do not fall into the hands of the State because homogeneity in child rearing would directly threaten the pluralism the Constitution protects.
Even when the Court first articulated limits on parental rights in Prince v. Massachusetts, it reiterated that state intervention in child rearing is the exception to the rule and emphasized that “[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”154
The Court reaffirmed the importance of parental rights and their grounding in the value of pluralism in 1972. In Wisconsin v. Yoder, the Court held that, despite the State’s strong interest in compulsory education, it could not require Amish children to go to school past age fourteen against the wishes of their parents because of “the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.”155 The Court was particularly interested in protecting parents’ right to direct “the inculcation of moral standards” and “religious beliefs.”156 Again, the Court linked these rights to pluralism by emphasizing that any other result would threaten the very existence of the Amish community.157
More recently, in Troxel v. Granville, the Supreme Court explained that parental rights include not only the right to make decisions about education but also decisions concerning with whom children associate.158 Justice Souter explained that this right is based in the constitutional protection against state interference with value inculcation in children:
The strength of a parent’s interest in controlling a child’s associates is as obvious as the influence of personal associations on the development of the child’s social and moral character. Whether for good or for ill, adults not only influence but may indoctrinate children, and a choice about a child’s social companions is not essentially different from the designation of the adults who will influence the child in school.159
Critically, “parental choice in such matters is not merely a default rule,” but rather a constraint on government authority to enter these decision-making arenas.160 The Court has been remarkably consistent for over a century in seeing this constraint as essential to the political structure of American democracy. It is not an accident that Meyer and Pierce are the only survivors of Lochner-era jurisprudence. Economic relations are now generally subject, of course, to majoritarian rule.161 But child rearing is privatized and constitutionally protected from majoritarian preferences because it is so inherently value laden and so fundamental to ensuring a pluralistic society.162
Two additional points about the constitutional protection of parental rights are worth noting. First, although the focus throughout the constitutional jurisprudence is on parents’ rights, it is important to see that the rights involved belong not only to the parents but to the children as well. In Prince, the Court stated that Meyer stood for the proposition that “children’s rights to receive teaching in languages other than the nation’s common tongue were guarded against the state’s encroachment.”163 The Prince Court further stated that Pierce “sustained the parent’s authority to provide religious with secular schooling, and the child’s right to receive it, as against the state’s requirement of attendance at public schools.”164 New York’s high court has put the same point more simply: “The parent has a ‘right’ to rear its child, and the child has a ‘right’ to be reared by its parent.”165 Notably, the right of children in this context is not to choose their own path but is to have decisions made for them by their parents rather than by the State.
Second, these parental rights survive a finding that some state intervention into a child’s upbringing is justified. In addressing the rights parents have after a judicial finding that there is a basis to put their children into foster care, the Supreme Court has said:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.166
Thus, while the State certainly has an interest in protecting children from serious harm that can justify the removal of children from parents and placement in foster care,167 parental rights survive that intervention.168 Indeed, in none of the Supreme Court cases that discuss terminating the parental rights of parents whose child has been residing in foster care for some time has it been disputed that the parental right remains strong and subject to constitutional safeguards.169
While the exact metes and bounds of these rights are most often worked out in state courts, they are constrained by the constitutional rule that any infringement on parental rights that is necessary to protect a child from harm must be narrowly tailored to serve that interest.170
In pursuing [an] important interest, the State cannot choose means that unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with “precision” . . . . [I]f there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose “less drastic means.”171
These constitutional considerations are critical to understanding the questions at issue in Fulton. For once we take seriously that the constitutional commitment to the rights of parents to direct the upbringing of their children is grounded in protecting pluralism and that the government’s authority remains limited even when it is authorized to take children into foster care, it should become clear that choosing who will temporarily step into the caretaking role as foster parents is filled with constitutional significance.
Before turning directly to how the interests at play in foster care placements—individual, group-based, and constitutional—affect the analysis of Fulton, some historical context is needed. These interests can only be understood adequately in the light of the shameful history of the American child welfare system’s oppression of marginalized families.172 Any analysis that ignores that history is insufficient.
4. American Child Welfare Practitioners’ History of Disrespecting and Destroying Children’s Cultural and Community Ties
Thus far, this Section has focused on normative interests that are relevant to the role and obligations of foster care agencies and foster parents. Any discussion of these roles and obligations must also grapple with the history of injustice perpetrated by American child welfare practitioners and how far that history has diverged from any defensible norms. A comprehensive history is beyond the scope of this Article, but it will consider some of the most blatant harms that have been perpetrated when the State failed to maintain the family, community, and cultural ties children had when they entered foster care. The interests at stake would exist and merit protection regardless, but the history demands heightened vigilance against particular dangers posed by the child welfare system.
This Section will review two of the most extreme examples of the dangers embedded in child welfare efforts: the orphan train movement and the use of boarding schools and foster care to sever Native American families. It will then discuss the current demographics of foster care and the repeated calls by those directly impacted by the foster care system to recognize the harms it inflicts on their families and communities.
In the 1870s, a high profile case of child abuse led to the development of societies for the prevention of cruelty to children.173 These societies were private but were authorized by law to protect children from harm by their parents.174 Although it was a case of abuse that rallied the call for empowering these charitable organizations, the focus of these societies—as with earlier family separation practices—was on protecting children from the ills of poverty rather than from individual instances of parental abuse.175 Throughout this period and until the 1960s, most removals of children from their parents were conducted by private actors connected to these types of charitable organizations, whose work was authorized by law.176 Though private, these organizations are the direct forerunners of the modern foster care system run by the government. Indeed, many government child welfare agencies continue today to contract out their child welfare work to private charitable organizations, including many of the same organizations that previously operated independently under color of law. CSS, the agency whose policies were challenged in Fulton, is one such organization.177
No student of American history will be surprised to learn that early child welfare practitioners’ moral judgments of poor parents were intertwined with prejudice against racial and ethnic minorities. The animating idea for these charitable agencies was that poor children needed to be “saved” from parents whose poverty indicated their inferiority and posed a threat to their children’s wellbeing.178 Led by Charles Loring Brace, founder of the Children’s Aid Society, these so-called “child savers” took poor children—primarily children of immigrant, Catholic families—from the streets of Northeastern cities and put them on trains, referred to as “orphan trains,” to the Midwest.179 While some of these children later reported positive experiences with the homes into which they were placed, many of them ended up as indentured servants to Protestant farmers, and accounts of serious mistreatment were common.180 Without suggesting a moral equivalence, it is important to note that the train station scenes at which these children were routinely displayed to prospective adoptive parents and chosen based on physical traits are disturbingly resonant with slave auctions.181
As many as 250,000 children were sent away from their communities as part of this orphan train project.182 The term “orphan” was a misnomer in that the majority of these children had living parents.183 The separation of families was justified as being in the best interests of the children,184 but these agencies “sought so aggressively to ‘save’ needy children that they were feared and criticized by the poor as child stealers.”185
It is clear that the concern about harm to children was deeply intermingled with disrespect and discrimination against their parents and the immigrant communities from which they came.186 What is most notable for present purposes is that these prejudices of the child welfare practitioners led not only to the destruction of parent-child relationships but also to unconscionable severing of the children’s community and cultural bonds.187
Turning to the second historical example, it would be difficult to overstate the injustice inflicted on Native Americans in the name of child welfare. Tens of thousands of Native American children were taken from their communities between 1860 and 1978 based on the idea that they would be “civilized” at residential facilities.188 The discriminatory motive of this educational program was explicitly captured in the infamous phrase “[k]ill the Indian, save the man.”189 Even when child welfare professionals shifted emphasis from residential-facility care to home-based care, the separation of Native families continued. The U.S. Bureau of Indian Affairs teamed with the Child Welfare League of America to create the Indian Adoption Project, which was followed by the Adoption Resource Exchange of North America. Congressional hearings found that ultimately between 25% and 35% of Indigenous American children were taken from their parents by child welfare officials, most to be put into white foster and adoptive homes.190
Outrage over these harms led to the 1978 Indian Child Welfare Act (ICWA),191 which makes it more difficult to remove Native American children from their parents and, when removals occur, requires keeping Native American children within their tribal community whenever possible.192 The degree of ICWA’s success in achieving its aims is debatable,193 but wherever one comes down on the best means to address the harms inflicted on Native Americans by the child welfare system, the history undeniably counsels caution in determining how we structure the system into which we place children the State takes from marginalized families. It is with the backdrop of this tragic history that contemporary lawmakers must determine how to respond to the current concerns of the underprivileged communities that are most affected by the foster care system.
5. Structural Racism in Modern Foster Care and Calls for Community–Based Providers
No discussion of contemporary approaches to selecting foster placements should fail to address the significant racial and ethnic disproportionality of today’s foster care system. Over 200,000 children from racial and ethnic minorities are in government custody in the foster system today, with African American and Native American children significantly overrepresented.194 Over half of Black children’s homes are investigated by child welfare officials.195 Even more significant for considering the benefits of community-based foster care providers is the steep increase, in this century, of transracial adoptions of children in foster care. As the number of adoptions from foster care has soared, the percentage of transracial adoptions has also escalated, rising to 28% in 2019.196 Ninety percent of transracial adoptions involve nonwhite children, and between 2005 and 2019, the percentage of transracial adoptions of Black children rose more than for children of any other race.197
While some have argued that this racial disproportionality can be explained by differences in income and other factors,198 parents in the communities directly impacted by the child welfare system regularly characterize the system’s interventions as racist in both intent and outcomes,199 and there is substantial empirical evidence demonstrating that racial bias affects decision making in the child welfare system.200 For instance, studies indicate that the same or lesser drug use by Black mothers results in greater system involvement than for white mothers, and that comparable childhood injuries are more likely to be diagnosed as child abuse in Black families than white families.201
While there has been recognition by some commentators of the racial disparities in the modern child welfare system since its inception in the 1960s and 1970s,202 the issue came more prominently to the fore as a result of Dorothy Roberts’ groundbreaking 2001 book Shattered Bonds: The Color of Child Welfare.203 In recent years, a growing number of activists from the Black communities hit hardest by children’s services and their advocates have drawn on their own experiences and Roberts’ insights to mount a new movement challenging the structural racism of the modern child welfare system and calling for radical change.204 The conversations begun by those activists and advocates have reached a broader audience in the wake of the Black Lives Matter movement and the reinvigoration of discussions about race following George Floyd’s killing.205
These critics have drawn on the work of scholars such as Roberts and Peggy Cooper Davis, who have traced the underpinnings of the modern foster care system to chattel slavery and post-reconstruction efforts to disempower Black families.206 Indeed, some have argued that, in light of this history, the child welfare system’s current mistreatment of Black families demands special protections (akin to those in ICWA) to prevent the unnecessary destruction of Black families and communities.207 And a growing chorus of commentators have analogized the racial harms of the foster system to the racial harms of the criminal system.208 Because of the disparate impact of child welfare intervention on Black women, some have characterized it as the “New Jane Crow.”209
There has been a call from across the ideological spectrum to address the racial harms of foster care, with some calling for abolition of the child welfare system210 and others seeking more moderate reforms.211 Even the most mainstream children’s rights organizations recognize now that “for many among the millions who actually experience it, the child welfare system is an entrenched set of government structures designed to reinforce the racist history of oppression and separation of Black families in the United States,” and say “[t]hat must change.”212
Today, as President Biden put it, it is broadly recognized that:
Throughout our history and persisting today, too many communities of color, especially Black and Native American communities, have been treated unequally and often unfairly by the child welfare system. Black and Native American children are far more likely than white children to be removed from their homes, even when the circumstances surrounding the removal are similar. Once removed, Black and Native American children stay in care longer and are less likely to either reunite with their birth parents or be adopted.213
The now widely held view that structural racism permeates the foster care system and must be addressed214 buttresses the longstanding principle that children should remain in their families of origin (and therefore their communities of origin) whenever safely possible.215 There have been persuasive calls for a number of further steps that also could be taken to reduce the harms of the system.216 Importantly, many of the critiques of the system’s structural racism and calls for change stress that, in the field of child welfare, community-based services are far preferable to top-down services.217 Much of the discussion of community-based services has focused on services to prevent the need for foster care, but it has also been recognized that when foster care is needed, it too should be community-based.218
Commentators have noted both the importance and the challenges of recruiting foster parents who are part of the communities from which foster children come.219 Specialized foster care agencies are one means to serve that goal. As the U.S. Children’s Bureau has recognized, the tradition of government child welfare agencies contracting with private foster care agencies provides a mechanism for meeting these challenges by targeting recruitment of foster parents and drawing on existing formal and informal institutions of social support in the children’s communities.220 Community-based agencies facilitate “more intimate relationships between the service providers and recipients, as well as the provision of more culturally and otherwise responsive services.”221
One example of taking this approach is the New York City foster care agency Coalition of Hispanic Family Services. The agency’s website explains that it was established because of “concern[] about the status of child welfare services to Latino children and families in New York City” and that it seeks to “provide community-based foster care services to Hispanic families.”222 Similarly, the co-director of the agency Center for Family Life, which “pioneered a model of neighborhood-based foster care” to avoid “the secondary trauma that results from being uprooted,” explained that “[c]linical intervention in foster care services, in this model, has value only in so far as it prepares and strengthens children and families to become engaged, to lead, and to make decisions within the communities in which they live.”223
Indeed, there have been targeted efforts in a range of different ethnic and religious communities to recruit and provide support to foster parents in those communities.224 Such efforts can take various forms, and no one suggests that any one-size-fits-all solution is appropriate. The point for present purposes is that there can be significant advantages to having private foster care agencies that focus exclusively on particular communities. Specialized agencies can serve all the interests in maintaining foster children’s community connections discussed above,225 and expanding specialized agencies might serve as a direct response to calls to address structural racism by moving the child welfare system away from its historically hegemonic approach to foster care.
It should by now be clear that foster care is a unique government service. It is an intervention into a constitutionally protected realm and therefore must be narrowly tailored. Remaining narrowly tailored while taking on, even temporarily, the enormous power entailed in child rearing presents special challenges because child rearing is inherently value laden. There are individual, group-based, and constitutional interests at stake, which require the service to be structured to protect preexisting relationships. Thus, unlike the vast majority of government or private services, foster care services not only can, but must take into account the race, religious, and cultural background of those it serves. Only with this in mind can the analysis of foster care as a public accommodation be properly understood.
III. Foster Care as a Public Accommodation
Turning back to Fulton, Philadelphia’s argument that it had the authority to stop sending foster children to CSS had two components. First, it argued that CSS was violating the nondiscrimination clause in its contract with the City. This argument was unavailing because the Court concluded that Philadelphia had discretion under the contract to recognize exceptions226 (even though the City had never exercised that discretion and indicated it had no plans to do so).227 Once the Court found that the rule CSS violated was not generally applicable, the question of CSS’s rights was not subject to Employment Division, Department of Human Resources of Oregon v. Smith (Smith), and the Court made quick work of holding that preventing CSS from continuing its foster care work for acting on a religious belief could not survive strict scrutiny.228 Although the Court acknowledged that the City had a strong interest in protecting LGBTQ individuals from discrimination, it found that the imposition on CSS was not sufficiently narrowly tailored.229 The Court then turned to the City’s second argument, which was that CSS’s policy of discriminating against LGBTQ couples violated the City’s Fair Practices Ordinance.230
The arguments about the contract and the city ordinance both misunderstood fundamental aspects of foster care; nonetheless, this Part will focus only on the latter because the broader issues are more clearly drawn when discussing the city ordinance, and the analysis of that argument is more easily transferable to other contexts.231
Philadelphia, like many jurisdictions, has an ordinance that forbids discrimination in public accommodations on numerous grounds, including sexual orientation.232 In Masterpiece Cakeshop v. Colorado Civil Rights Commission, where the question raised was whether such an ordinance prohibited discrimination even when that discrimination was based on the exercise of a religious belief, all parties agreed that the venue at issue—a bakery—is a public accommodation.233 But in Fulton, the question of whether the context of the dispute—foster care—is a public accommodation was hotly disputed and received significant attention from the Court.
The City and the intervenors (The Support Center for Child Advocates and Philadelphia Family Pride) argued that foster care is a public accommodation and that therefore foster care agencies cannot discriminate against potential foster parents.234 CSS argued that foster care is not a public accommodation.235 Both sides were wrong. And while the Court correctly concluded that foster care agencies are not acting as a public accommodation when they certify foster parents,236 its discussion of this point demonstrated a disturbing lack of appreciation for the constitutional aspects of foster care.
Similar to other jurisdictions, Philadelphia’s Fair Practices Ordinance defines a “public accommodation” in relevant part as: a provider “whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold, or otherwise made available to the public; including all facilities of and services provided by any public agency or authority . . . the City, its departments, boards and commissions.”237
Foster care might be said to offer facilities (foster homes) and to be a service (caretaking). But is it reasonable to characterize this service as being offered to the public? Put differently, who is it a service for? No one could doubt that it is a service for foster children. And it may fairly be regarded as a service for the families from which the foster children come. But, decidedly, foster care is not a service for foster parents. Foster parents provide the service; it is not offered to them. It is difficult to imagine anyone disagreeing with this point when put directly, but unfortunately, it was never raised in the case.
Foster care does not exist to provide children to foster parents, and even though placements sometimes lead to adoption by foster parents, that is never the system’s purpose. The law’s goal could not be clearer: to have children reside in foster care only as long as necessary and to leave their foster parents to return home whenever possible.238 That uncontroversial point seems to have gotten lost as foster care cases got swept into the movement to protect the rights of LGBTQ individuals who wish to become parents and have their parent-child relationships treated equally under the law. As important as it is to protect those rights,239 including the right to adopt, they cannot include the right to parenthood at the expense of an existing parent-child relationship.240 As the Supreme Court noted in OFFER, there is a “virtually unavoidable” “tension” between claims of a foster parent’s rights to a child and the rights of the parent of that child, and the rights of the parent are paramount. 241
The Fulton Court seemed to recognize that foster parents are not the intended beneficiaries of foster care. The decision noted the “customized and selective assessment” process involved in being certified as a foster parent and concluded that “foster care agencies do not act as public accommodations in performing certifications.”242 But later in the decision, the Court said far more broadly: “We agree with CSS’s position, which it has maintained from the beginning of this dispute, that its ‘foster services do not constitute a “public accommodation” under the City’s Fair Practices Ordinance.’”243 This language might be viewed as dicta or as a loose restatement of the more precise aspect of the holding that foster parent certifications (rather than all aspects of foster care) are not a public accommodation, but it is concerning that it seems to indicate a failure to recognize that foster care is a public accommodation for some purposes. The failure on this point is clear when the majority decision criticized the concurrence for “seeing no incongruity in deeming a private religious foster agency a public accommodation,”244 thereby indicating that the majority does not understand foster care is a public accommodation with respect to the service it provides to foster children.
This failure entails a problematic misunderstanding of foster care and, as will be discussed below, is in striking contrast to the far more nuanced grasp of foster care that the Court demonstrated in OFFER.245 The misunderstanding seems to arise from the unique nature of foster care, which is not readily analogous to other services. In discussing the meaning of the term “public accommodation,” the Court emphasized that availability is the key idea, saying a service is a public accommodation if it is “accessible” and “obtainable.”246 Looking at Pennsylvania law, the Court said a public accommodation “solicits the patronage of the general public,”247 and the ‘“common theme”’ is that it “provide[s] a benefit to the general public allowing individual members of the general public to avail themselves of that benefit if they so desire.”248 Foster care does not easily fit this theme in part because it is not something anyone desires, and no one is being solicited to engage with it. But the fact that most people will never qualify for foster care does not mean it is not a public accommodation. While there is some variation in the definition of the term public accommodation as it is defined in different statutes,249 the critical point is that foster care is a service offered to the public in the sense that any child in the custody of the State is entitled to it. And it is a service offered to the public in the sense that any parent of a child who enters foster care is entitled to the services and support of the parent-child relationship described above in Section II.A.250
It is striking that neither the Fulton Court nor the litigants addressed the most important case on the issue of what children are entitled to from foster care and the concomitant obligations of religiously based agencies contracting to provide foster care for the state. In 1973, the New York Civil Liberties Union filed Wilder v. Bernstein,251 a class action lawsuit alleging that New York City was illegally allowing religious foster care agencies to pick and choose which foster children it would accept.252 These foster care agencies—like CSS—had been providing care to needy children since before the establishment of the modern foster care system.253 In the 1800s and well into the 1900s, the law had given those agencies the authority to take custody of poor children and house and care for them.254 When the government took over more of the role of protecting children in the 1960s and began to manage foster care, New York City contracted with those existing agencies.255 Almost all of the foster care agencies in New York City were religiously affiliated, with the largest and best financed ones being Catholic and Jewish.256 These agencies viewed their charitable role as helping children broadly, but they also had the specific goal of helping children of their own faiths and providing them religious education.257 Because most of the agencies, including those that provided the highest quality foster care services, were Catholic and Jewish, and most of the Catholic and Jewish foster children were white, white children were given better foster care placements more quickly, while Black foster children languished on waiting lists and were less likely to get placed with the foster care programs thought to provide the best services.258
The Wilder case went on for decades and significantly altered New York City’s foster care system. The legal challenges included race discrimination, free exercise violations, and establishment claims.259 But the gravamen of the lawsuit was that charitable religious organizations could not legally discriminate simply because they were engaged in charitable work that they had begun outside government purview and that included the goal of serving their own particular religious communities.260 Many on the boards of the largest and most influential charitable organizations in the City were incensed that their authority to conduct charitable work as they saw fit was being questioned.261 But in the end, the settlement agreement acknowledged that once the government took over the provision of foster care, religious foster care agencies could not discriminate based on race or religion in ways that would be allowed if they were not acting as state contractors.262
The City reached a settlement with the plaintiffs in which it was agreed that placement of children with foster agencies would switch to a “first-come, first-served basis.”263 Religious matching of children with agencies would be allowed but only when there was an opening at an agency of the child’s religion without delaying the placement of other children.264 Additionally, the settlement required foster care agencies to provide “comparable opportunities for [foster] children to practice their [own] religion”265 and “benefits and privileges to children without regard to religion, and [prohibited conveying] religious tenets regarding family planning except in the course of providing religious counseling.”266 And agencies also could not display “excessive religious symbols.”267
Nineteen religious foster care agencies objected to the settlement, but the United States District Court overseeing the action nonetheless approved it.268 In a thoughtful opinion, Judge Robert Ward found that the compromises made by the various parties appropriately addressed the race and religion discrimination claims the plaintiffs had made and reasonably balanced the free exercise interests of foster children against the establishment concerns raised.269
In approving the settlement, the Court said that when there is “joint implementation” of a state regulatory scheme “governing the funding of sectarian child care agencies and the religious matching of children in need of foster care with those agencies,” and the child is placed with foster care but “the State and City remain ultimately responsible for the child’s welfare, . . . the action of the [agency] may be fairly treated as that of the State itself.”270
I do not mean to suggest that Wilder was directly relevant precedent to Fulton or will be to the next legal challenge involving a foster care agency that refuses to certify LGBTQ foster parents. The precise legal questions in such cases are likely to vary. They can hinge on whether foster care is a public accommodation, whether a foster care agency is a state actor for purposes of the First and Fourteenth Amendments or Section 1983 actions, or even on employment discrimination statutes.271 But Wilder brought to the fore the critical point that once the State takes custody of a child, that child is entitled to maximum constitutional protection against discrimination regardless of whether the State partners with religious entities who previously provided similar charitable services outside the purview of government, even if those entities’ actions would otherwise be protected by the First Amendment.
Wilder vividly brought to life that Black children in the custody of the State, such as named plaintiff Shirley Wilder, were consigned to institutions as they sat on waitlists for years, while white and Hispanic children went to higher quality foster placements at Catholic and Jewish agencies that preferred to accept Catholic and Jewish children.272 It can no longer seriously be doubted that such a practice is unconstitutional. In other words, it can no longer be doubted that foster children are entitled to equal treatment regardless of whether the government contracts out foster care services.273 As Professor Lawrence Sager pointed out in his amicus brief in Fulton, if the State cannot constitutionally take an action, it cannot contract with an agent to take that same action.274 Thus, it is puzzling that CSS’s position—that “foster care has never been treated as a ‘public accommodation’ in Philadelphia”275—was articulated so broadly that, if adopted wholesale, it would abnegate the right of foster children to equal treatment; and even more puzzling is that the Court’s discussion of public accommodation left open the possibility that it was adopting that position.276 Holding that foster care is not a public accommodation offered to foster parents—all that was necessary to the Court’s ruling—is far more defensible than the proposition that foster care is not a public accommodation insofar as it is offered to foster children.277 None of the litigants in Fulton were motivated to draw that distinction, but it is a crucial one, and it is unfortunate that the Court did not make it.
IV. What Do We Talk About When We Talk About Foster Care?
There is strikingly little discussion of foster care qua foster care in Fulton. There is the Court’s brief discussion (noted above) of the foster parent certification process when it concluded that the process was not a public accommodation, and the Court spent two brief paragraphs explaining that Philadelphia contracts with private foster care agencies to approve foster homes.278 But there is no acknowledgement at all of the unique character of the government’s role when it is providing foster care services or that this role generally only arises in the wake of one of the most awesome and dangerous uses of state power in the realm of a fundamental right: forcibly separating children from their parents.279 In contrast, the OFFER Court provided a lengthy and nuanced overview of foster care before turning to the specific question at hand in the case: whether a hearing is required before a child is removed from a foster home.280
Some might respond that discussion of these various aspects of the foster care context was not required to answer the question before the Court in Fulton. But the failure to appropriately situate the dispute has significant costs. Consider how differently the Court approached OFFER. There, the Court noted the importance of “a full appreciation of the complex and controversial [foster care] system with which this lawsuit is concerned”281 and reviewed not only the specific statutes governing foster home transfers but also the larger structure and purposes of foster care.282 The Court explained that:
The expressed central policy of the New York system is that “it is generally desirable for the child to remain with or be returned to the natural parent because the child’s need for a normal family life will usually best be met in the natural home, and . . . parents are entitled to bring up their own children unless the best interests of the child would be thereby endangered.”283
The Court also emphasized that when in foster care, a “child still legally ‘belongs’ to the parent and the parent retains guardianship.”284
The OFFER Court did far more than set the stage for the statutory analysis by providing the legislative purposes of the statutory scheme. It went on to review the broader tensions and debates surrounding foster care. The Court explicitly acknowledged that “[f]oster care of children is a sensitive and emotion-laden subject, and foster-care programs consequently stir strong controversy,”285 and it then discussed the competing concerns and differing critiques of the system. Among other points, the Court in OFFER highlighted the following:
- Both birth parents and foster parents presented serious challenges to the “misleadingly idealized picture” of foster care as portrayed by the State.286
- Children in foster care are vastly disproportionately from poor and nonwhite families.287
- “[F]oster care has been condemned as a class-based intrusion into the family life of the poor.”288
- Studies also suggest that social workers of middle-class backgrounds, perhaps unconsciously, incline to favor continued placement in foster care with a generally higher-status family rather than return the child to his natural family, thus reflecting a bias that treats the natural parents’ poverty and lifestyle as prejudicial to the best interests of the child. This accounts, it has been said, for the hostility of agencies to the efforts of natural parents to obtain the return of their children.289
All of these points could be made today. Indeed, the racial harms of foster care are, if anything, worse now and the calls for change louder from the communities directly affected by the child welfare system and parents and children’s advocates.290 But there is no discussion in Fulton of the problems of the foster care system or the debates over how those problems should be understood and addressed. Instead, the Fulton Court used a familiar accolade to valorize those who work within it. The Court called CSS “a point of light in the City’s foster-care system,” noting that Philadelphia itself used this laudatory language.291 This phrase, of course, evokes the “thousand points of light” that President George H.W. Bush famously used to celebrate volunteerism and to emphasize the role of private charitable efforts over public social welfare efforts.292
The Court also described in appreciative tones the Catholic Church’s long record of working with needy children in Philadelphia—mentioning its work with orphans in particular.293 The district court opinion went even further in this regard. Its decision began as follows: “The gratitude we owe to all those working to better the lives of Philadelphia’s most vulnerable children is too great to convey in words. While our gratitude is ultimately ineffable, the Court still begins by recognizing the Parties in this case for their many years of sacrifice and labor.”294
The point of noting this tone is not, of course, to suggest that we should not express gratitude to those whose work benefits children. Rather, it is to remind us that placing the focus of discussions of foster care on the virtue of those who serve children often reflects and reinforces certain understandings of the child welfare system at the expense of others. The term “child savers” was once used by those doing social work with poor children to describe their own roles, but the idea has been widely debunked as an arrogant and dangerous approach, one that led to an inflated sense of the role of (typically white, well-off) child welfare practitioners in the lives of underprivileged children and disrespect for their nonwhite parents.295 Today, few children’s advocates willingly accept the term296 (which is now used more often as an insult), but the danger remains.
This is more than a semantic point. The issue is not the term “child saver.” It is that lauding those who work with children tends to come at the expense of the aggressive skepticism of child welfare efforts that history has demonstrated is needed to protect children and families. There is no field in which it is more crucial to heed Justice Brandeis’s warning about the government’s beneficent purposes.297 The impulse to protect children is admirable and strong, and the danger of that impulse is great. When government took over the social welfare work that previously was in the hands of agencies such as CSS and turned (not everywhere, but in places like Philadelphia and New York City) to a model of public–private partnerships to administer foster care, the danger of government power in the realm of family life was made more complicated. Such a partnership model offers significant benefits, which will be discussed below, but it requires diligence in shielding against abuses of authority.
Thus, it is worrisome to see the narrative shift from OFFER to Fulton—a shift away from emphasizing the weight of parents’ constitutional rights and the profound challenges of administering a foster care system, toward a description of foster care that is warm and fuzzy and fails to acknowledge the threat of government overreach. While the critiques have evolved, it is as true today as it was when Justice Brennan wrote the OFFER decision, that no one on any part of the ideological spectrum believes the American foster care system functions anywhere close to as it should. The dangers inherent in government intervention in family life certainly remain.298
Had the Fulton Court, the litigants, amici, or commentators been more focused on the broader issues of the foster care system as they were for OFFER, perhaps there would have been some comment on the fact that Philadelphia has more children in foster care per capita than any jurisdiction in the United States.299 But it went unnoted that Philadelphia’s foster care system separates children from their parents three times as often as New York City’s and four times as often as Chicago’s.300 Nor did anyone seem to think it was worth mentioning that Philadelphia children who are separated from their parents are disproportionately Black, or that there might, therefore, be reason to recruit foster parents who are disproportionately Black.301
Notably, two aspects of foster care emphasized in OFFER have changed significantly in ways that went unmentioned in Fulton. First, the OFFER Court highlighted that at that time most foster care placements were voluntarily made by parents.302 Some placements were involuntary, meaning they were ordered over the objection of parents based on allegations of abuse or neglect, but far more were placements at the requests of parents. In contrast, today, an overwhelming percentage of foster care placements are involuntary.303 The OFFER Court noted questions regarding how truly voluntary so-called “voluntary” placements were and the lack of meaningful choice that impoverished parents had when facing crisis.304 However important it was to question how truly voluntary placements ever were, child welfare policy has since moved starkly away from even assertions of voluntariness.305
In the 1960s and 70s, the public discourse around child welfare shifted from concern about poverty to a focus on child abuse and neglect by parents, i.e., from viewing child welfare as a systemic class-related issue to viewing it as an issue of the individual pathology of particular parents.306 This new discourse led to the passage of the Child Abuse Prevention and Treatment Act of 1974 and the massive system of mandated reporting, investigation, and civil prosecution of child maltreatment that we have today.307 There is much to say about this shift and the subsequent explosion in involuntary family separations that is beyond the scope of this Article. The point here is that it is striking that the Supreme Court was highly attuned to the dangers of the foster care system infringing parental rights at a time when most foster care placements were purportedly voluntary and did not mention that danger at a time when nearly 400,000 children in the United States are in foster care involuntarily.308
Second, the OFFER Court noted that a “distinctive feature” of foster care is that “it is for a planned period—either temporary or extended”—and that it “is unlike adoptive placement, which implies a permanent substitution of one home for another.”309 While adoption from foster care was not unheard of at the time, the Court’s language reflects that foster care was not viewed then as intertwined with adoption. That is no longer true today because of the changes wrought by the Adoption and Safe Families Act of 1997 (ASFA), which significantly reshaped foster care in the United States.310 For the first time, ASFA prioritized adoption as a goal of the American foster care system. Adoption is the secondary goal, after family reunification, but it is aggressively incentivized through federal funding, including adoption subsidies to many foster parents who adopt, bonuses to states for increasing the number of adoptions they complete, and financial penalties for not filing termination of parental rights petitions once a child has been in foster care for fifteen months.311
As a result of ASFA, an unprecedented number of children are now adopted out of foster care in the United States, and concurrent planning—preparing for adoption as a backup plan even while the goal is still to reunify a child with her parents—is widespread.312 As noted above, this aspect of the foster care context is critical to understanding why the challenge in Fulton arose. Foster care has become a flash point in the broader clash over LGBTQ rights because it is now a major route to acquiring children to adopt.313 Close to 60% of children adopted in the United States today are adopted from foster care, while only 15% are adopted domestically as the result of decisions by mothers to put their babies up for adoption. The rest are international.314
Yet there has been virtually no mention in discussions of Fulton that far more people care about foster care today—enough people for it to be chosen as a frontline battleground in the culture war—because it has become a pipeline to adoption. As a point of comparison, when OFFER was decided, it got one paragraph in The New York Times, buried on page nineteen;315 Fulton, of course, was front page news.316 Indeed, much of the press coverage (from all sides of the ideological spectrum) referred to Fulton as a case about “adoption,”317 though technically it was about whether LGBTQ couples could be certified as foster parents, not adoptive parents. It is not incorrect for the litigants on both sides to view foster care as intertwined with adoption as it is now. But it seems critical to recognize that the dangers of abuse of authority can only arise when a government system is in the business of taking children from some parents and providing them to others to adopt.
The point of contrasting the narrative focuses of Fulton and OFFER is to highlight the dangers of shifting away from keeping constitutional rights to family integrity at the forefront of discussions about foster care. It is important that disputes over who has access to foster children are disputes over access to children who have parents. I do not mean to suggest that that fact resolves the Fulton question one way or the other, though I will explain in the next Part that it may push more in one direction. But however necessary it sometimes is for the State to exercise its power to separate families in circumstances where that is necessary to protect children, the danger of potential abuse of that power always looms. It will perhaps be seen as alarmist to say that this case had anything to do with abuses of the authority to take children. But in light of the track record of the United States in failing to protect the rights of marginalized families from unlawful separations by the child welfare system,318 it is difficult to imagine what would constitute an excess of caution on this front.
It does not denigrate the importance of the rights of anyone who wants to foster or adopt to remind ourselves that we must always be on guard against the recurring impulse of adults to use best interests arguments for their own purposes, i.e., to argue that their position is aligned with children’s best interests.319 To anyone concerned about this danger, it should be disturbing that, while in OFFER the Court said “there are . . . important distinctions between the foster family and the natural family” and found the constitutional weight of the latter far more important,320 in Fulton, the Court discussed the foster care agencies’ obligation to “continue[] to support the family throughout the placement” and clearly meant foster families.321 Disturbingly, this was the only reference to families of foster children in the opinion at all.
V. Pluralism and Foster Care: The Counterintuitively Shared Interests of Many Bedfellows
The main arguments of this Article thus far have been that the Court and the litigants misunderstood how to analyze foster care as a public accommodation and more broadly failed to understand the key constitutional considerations and constitutional dangers inherent in the foster care system. Once those constitutional underpinnings are properly understood, a number of questions follow, which would have been useful to address in Fulton, and certainly should be considered before similar challenges are brought back to the Supreme Court. These questions have to do with the benefits of placing foster children with foster care agencies that are connected to the communities from which the children come.
As discussed above in Part I, foster homes that are culturally connected to foster children’s families of origin both support the likelihood of achieving the primary goal of family reunification and serve the important purpose of maintaining cultural and community ties when children are ultimately adopted by the foster parents. These benefits have constitutional dimensions if we take seriously the limits on the State’s power to intervene in the parent-child relationship.
It is most obvious that the constitutional right to raise one’s child is at stake at the moment that the State seeks to separate child from parent. But as significant as that moment of separation is, the constitutional stakes are even higher after a child has been in the custody of the State. It is then that the interests discussed in Part I come to the fore: the foster child’s interests in remaining connected to her family, her culture, and her community; the interest of the community from which the foster child comes in maintaining the children’s cultural and community ties; and the constitutional interest in pluralism that demands maintaining the foster children’s cultural and community ties.322 These interests require a foster care system that proactively seeks to provide care to children that supports, rather than undermines, their existing connections. Recent history suggests we can predict the government will take over 260,000 children into custody annually.323 While some of these children will be returned to their homes quickly enough that the issue of sustaining cultural connections will not arise, it is predictable that a significant number of them will remain in placements long term.324 A narrowly–tailored approach that can justify family separation therefore requires developing a foster care system that is designed to support maintaining the cultural and community ties of children who are removed from their parents.325
The practice that can most directly achieve this purpose is being pursued around the country: encouraging and expanding the use of kinship foster care whenever possible. Placing children who are in the legal custody of the State into the temporary care of relatives typically minimizes the disruption to the child’s relationships and comes closest to continuing the upbringing the parent had chosen.326 But there are a significant number of cases in which kinship care is unavailable. In light of this, an important question to consider is whether the State should be seeking contracts with foster care agencies that are linked to particular religious or ethnic communities. Put differently, a critical omission in the discussion around Fulton has been the lack of attention to the potential benefit to children and families from minority327 communities of having foster care agencies that are connected to those particular communities. The participants and observers of Fulton were so focused on the interests of potential foster parents—the LGBTQ couples who could not be certified at CSS and the Catholic foster parents, such as plaintiffs Sharonell Fulton, Cecelia Paul, and Toni Lynn Simms-Busch (the foster parents individually thanked for their service by the district court),328 who want to work at an agency that follows their religious beliefs—that they ignored the interests foster children and their families have in how foster care is structured and who gets to be a foster parent.
There was discussion of the children’s interests insofar as there was debate as to what outcome in Fulton would lead to a greater number of foster homes (with the City and some amici arguing that discouraging LGBTQ couples will mean fewer foster homes and CSS and others arguing that disallowing the religious exception could lead to the closure of Catholic foster agencies and therefore fewer foster homes), but there was no consideration of the substantive interests of the foster children.329 One important possibility is that it may be strongly in the interests of foster children and their parents for children to be placed in foster homes that share their heritage—religious, racial, ethnic, or cultural. This is not, of course, an uncontroversial claim (as indicated by the MEPA restrictions on considering the race or ethnicity of potential adoptive parents), and this Article is not aimed at persuading anyone on it as a matter of social policy. But it is certainly a possibility that at least deserved consideration in the discussion around Fulton.
The current political realities that shaped Fulton have turned traditional tensions between majority and minority interests so inside out that some of the interests at stake were wholly ignored, and the dramatic shift in the position deemed “progressive” obscured how minority rights most often play out in foster care. The Smith decision that so many conservatives are looking to reverse was, of course, written by conservative Justice Scalia at a time when protecting the rights of minorities against the will of the majority was seen as progressive work.
In the Smith decision, which empowered majorities to impose their views on religious minorities so long as no minority group was targeted, Justice Scalia acknowledged “that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself.”330 The iconic liberal Justices Blackmun, Marshall, and Brennan joined Justice O’Connor in a strongly worded dissent, insisting that:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities . . . . One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.331
That liberal vanguard would be surprised to read the current progressive commentary on Fulton, which fiercely resists returning to stronger protections of minority views against majoritarian control. The shift is explained in part by a change in the minority groups that feel most threatened by majoritarian values. Today, of course, Catholics and evangelical Christians are the most prominent supporters of religious liberty. They are associated with the political Right and not typically viewed (now) as oppressed groups. But throughout American history, the champions of religious rights were groups not associated with the Right and were typically marginalized groups subject to discrimination, such as the Amish, Jews, the Mormons, and Jehovah’s Witnesses.332 The losing parties in Smith were Native Americans who claimed the right to smoke peyote during religious services at the height of the war on drugs.333 Thus, the progressive inclination to protect minorities was aligned in that case with protecting a particular minority to whom they were sympathetic. Indeed, the dissenters bemoaned the ruling’s failure to recognize “years of religious persecution and intolerance” and the consequent need to “protect[] the religious freedom of Native Americans.”334 The political alignments are very different now that the minority groups leading the charge for religious liberty are not viewed as persecuted or oppressed.
Further complicating the politics is that the “majoritarian” position in Fulton is protecting the majority’s right to protect those in the minority LGBTQ community from discrimination. We have reached a point where advocates for the rights of the historically oppressed LGBTQ community are pressing a majoritarian-empowering view because LGBTQ rights have successfully garnered the support of a majority of voters; while the religious Right, which historically has been more privileged and has at times been aligned with oppression of people of color, is now at the vanguard of defending minority rights. The dramatic shift in alignments that occurred between Smith and Fulton can be seen in the amicus filings. In Smith, the ACLU,335 Jewish organizations,336 and Native American groups337 filed amicus briefs in support of minority religious rights. Notably, no amici supported the government’s position. In contrast, this time around, the ACLU338 and several other left-leaning groups339 sided with the government against the claim for constitutional protection by the religious minority.
To recognize this as an important shift is not, of course, to say which position is stronger or even necessarily to accuse either side of inconsistency. It may be that antigay discrimination poses a stronger reason to limit the rights of religious minorities than were at stake in earlier clashes of majority and minority interests. But it is one thing to come out in favor of antidiscrimination laws against minority religious rights and quite another to act as though there are no competing progressive values at stake. The lack of acknowledgement of this conceptual tension340 made it more difficult for Fulton observers to see the important constitutional interests at stake in the foster care context. The interests in keeping foster children connected to their families and communities are the interests of minority groups (typically disadvantaged minority groups) and complicate the question of when a majority should be able to impose its preferences on a minority.
Many of the loudest and most compelling critiques of the child welfare system in recent years have come from activists in the communities most heavily overrepresented in the child welfare system who are calling for a shift to more community-based programming.341 They emphasize the importance of culturally sensitive practices and strongly prefer bottom-up to top-down support. They condemn the taking of children from parents in certain communities and placing them in the care of foster parents of a different background—connecting this practice to roots in chattel slavery.342 Many of these activists are calling for the abolition of the child welfare system rather than reform, but, to the extent reform is more likely or that certain reforms are viewed as abolitionist,343 these commentators seem to be suggesting an approach that would favor community-based foster care agencies. Though some oppose state-run foster care altogether, when children do go into foster care, these critics prefer assistance that comes directly from the communities of the children involved.344
This is not a new idea. Many of the religious agencies whose practices were challenged in Wilder for discriminating against Black Protestant children were established in response to mistreatment directed at Catholic and Jewish children by Protestant child welfare practitioners.345 There was a strong impulse for these communities to want to take care of their children and keep them connected to the communities into which they were born.
The settlement in the Wilder case specifically allowed for exceptions to the first-come, first-served policy to allow children to be placed with “specially designated” agencies if the family from which they come has religious beliefs that “pervade and determine the entire mode of their lives, regulating it with detail through strictly enforced rules of the religion.”346 That provision allowed, for instance, the City to continue to contract with an Orthodox Jewish foster care agency that recruited Orthodox Jews to be foster parents for Orthodox Jewish foster children—an agency that continues to provide foster care today.347 Such recruitment and placement certainly entails discrimination based on religion—raising an important question of whether such a program falls within an exception to otherwise applicable constitutional and statutory rules against discrimination.
Some of the defendants in Wilder challenged the exception provision in the proposed settlement on First Amendment and Equal Protection grounds. Assuming strict scrutiny applied, the Court found the “interest in protecting the Free Exercise rights of children from pervasive religious cultures is sufficiently compelling to justify their differential treatment.”348 One of the points that was missed by Fulton commentators is that this kind of exception for foster care agencies might well receive strong support from both ends of the ideological spectrum. At a minimum, those who oppose granting a religious minority exception that would allow CSS to violate otherwise applicable antidiscrimination laws should grapple with what that position means about the viability of a religious foster care agency that seeks to discriminate in order to match foster children with foster parents from their communities.349
Consider, for instance, the specialized foster care agency Coalition of Hispanic Family Services, discussed above. The mission statement includes a commitment “to empower children, youth and families with opportunities for success and self-reliance while reinforcing their sense of culture and self-identity.”350 Any attempt to limit the ability of a foster care agency to discriminate puts an agency with this type of mission at risk. If an agency seeks to support families whose children go into foster care by offering foster families who share racial, ethnic, religious, or cultural backgrounds, that requires discriminating against potential foster parents who do not share those characteristics. Of course, those potential foster parents need not be denied the right to foster, but if there were significant numbers of such applicants, they would have to be referred to other foster care agencies in order for the specialized agency to maintain its mission focus. CSS made the point in Fulton that it sought only to refer LGBTQ couples to other foster care agencies, but that is what the City found an unacceptable violation of its antidiscrimination ordinance.351 Just as the Coalition for Hispanic Family Services likely does not have to turn away many non-Hispanic foster parents because they self-screen and apply to other agencies, it was undisputed that no gay person applied to foster through CSS.352 A discriminatory policy need not, of course, lead to actual discrimination to be harmful if it works by deterring applications. The point is that there are strong analogies between what CSS was doing and what foster care agencies do if they are seeking to link foster children with foster parents from similar backgrounds.
Even more counterintuitively, opposition to exemptions allowing foster care agencies to discriminate may limit the ability of foster care agencies to cater to LGBTQ youth in some ways that LGBTQ advocates might support. In a New York Times opinion piece published just before Fulton was decided, professors Stephen Vider and David S. Byers argued that if the Court ruled in favor of CSS in Fulton, that would hurt not only LGBTQ foster parents but LGBTQ foster youth as well because it “would embolden foster care agencies across the country to acquiesce in and perpetuate discrimination against L.G.B.T.Q. people.”353 Vider and Byers rightly point out that LGBTQ youth are significantly overrepresented in the foster care population, and part of the State’s obligation is to provide foster care that is sensitive to their needs.354 They go on to tout efforts in Philadelphia and elsewhere to specifically recruit LGBTQ foster parents in order to match them with LGBTQ youth.355 They applaud the expansion of a Philadelphia LGBTQ counseling center, Eromin, into a foster care agency specifically designed to recruit LGBTQ foster parents for LGBTQ youth.356 It is possible to imagine that such an agency could recruit LGBTQ foster parents without turning down straight applicants. But to the extent it is recognized as beneficial to establish foster care agencies that are purposely not diverse because they seek to specialize in providing services to a particular community—whether that be based on sexual orientation, race, ethnicity, religion, or culture—it should be acknowledged that such specialization is at odds with banning discrimination in the certification of foster parents if we include in the definition of discrimination (as LGBTQ advocates did in Fulton) referring potential foster parents to different foster care agencies.
Thus, in the foster care realm, insisting on granular diversity (meaning diversity within every provider agency) means giving up pluralism because if every foster care agency reflects the full diversity of society, foster children cannot be placed in a way that optimizes their connection to the community from which they were removed. I do not mean to suggest that there are obvious answers to when specialization of foster care agencies and the discrimination it requires should be allowed,357 but rather to make clear that there would be a significant cost to disallowing all discrimination that does not seem to have been considered by those who opposed CSS in Fulton. None of the litigants or amici seemed to recognize this trade off,358 and the Court did not address it.359
The most clear-cut example of the trade off in foster care between nondiscrimination and diversity on the one hand and pluralism on the other is presented, of course, by ICWA, which prioritizes placing Native American foster children with Native American foster parents.360 Under ICWA, every potential foster parent who is not a Native American is denied (with few exceptions) the opportunity to be a foster parent of a Native American child solely on the basis of their status as non-Native American.361 ICWA is certainly not uncontroversial and, in fact, a movement is underway to overturn it precisely because it discriminates. ICWA has only survived equal protection challenges because it is based on political status rather than race and nonetheless may well be struck down soon.362 Again, the point here is not to argue that discrimination in who can serve as a foster parent is constitutional but rather to clarify the question, identify the strongest arguments in favor of allowing discrimination in this particular arena, and draw out the consequences of arguing that it is illegal to discriminate against LGBTQ foster parent applicants. There is little doubt that many of the supporters of the City’s position in Fulton—the position seen as pro-LGBTQ and therefore progressive—will oppose challenges to ICWA.363 But the strongest arguments for ICWA include emphasizing the constitutional significance of pluralism, parental choice, and cultural continuity in foster care placements364—arguments that would have been undermined by a decision in Fulton that forbid any discrimination in selecting foster parents.
Because of the horrific history of child stealing that led to it, ICWA is the strongest possible reminder that truly serving foster children demands vigilance in respecting their community ties and questioning the motives of those seeking custody of them. If we fully grasp that foster care is not for potential foster parents and adoptive parents—that it is not a service designed to help any adults get children—we approach the claims of potential foster parents differently. That is not to say, of course, that claims of discrimination by foster parents should never prevail, but the first steps when a potential foster parent complains they were wrongfully denied a foster child should be to ask what foster placement the child’s parent favors and, in the absence of an answer on that, to query what placement would likely be best at keeping the child connected to her family and community.
On this reasoning, CSS might have argued that its approach of applying Church doctrine was tied to its recruitment of Catholic foster parents (a claim some of the foster parent plaintiffs seemed to support) and that having more Catholic foster parents was good for foster children.365 They argued that having foster parents through CSS was good for foster children (and that closure of referrals to CSS was bad for those children),366 but they did not argue that there was anything specific about Catholic foster parents that would serve the children or help keep them connected to their families and communities. It is not clear from the public data whether there was an argument to be made that CSS serves a significant number of Catholic children, but it does seem to be the case that CSS has an unusually high percentage of Black foster parents,367 which is significant in a city where 70% of the children in foster care are Black.368 If the recruitment of Catholic foster parents overlaps with the recruitment of Black foster parents, there would be a strong argument that it benefits Philadelphia’s foster children (and serves the group-based interests and constitutional pluralism interests discussed here) to have an agency with the specialized focus CSS has.
Whether available to CSS or not, there is an important argument that foster care agencies that focus on maintaining the ties of foster children to particular communities should get an exception to otherwise applicable antidiscrimination laws because the benefits of having diversity among, rather than within, foster care agencies have constitutional dimension.369 While, of course, the State must serve all foster children (and their families) in a nondiscriminatory manner, best serving each foster child means providing that child with a foster home that will keep her connected to her family and community of origin. If a state chooses to promote that goal by contracting with multiple foster care agencies, each of which serve different populations, then referring a foster parent applicant from one agency to another is not necessarily illegal discrimination. And if there are fewer slots for foster parent applicants in certain demographics, that is not a violation of antidiscrimination laws any more than it would be for the military to hire more chaplains of one religion than another based on the percentage of military troops of different religions.
It is worth noting that this argument could fit within the so-called “hybrid exception” to Smith. In Smith, Justice Scalia distinguished seemingly contrary precedent by explaining:
The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents to direct the education of their children. . . .
The present case does not present such a hybrid situation, but a free exercise claim unconnected with any communicative activity or parental right.370
This language opened the door to the possibility of a “hybrid” exception, in which strict scrutiny is imposed if another fundamental right is involved in addition to free exercise,371 though the viability of this approach has been seriously questioned.372 Exploring the viability of the hybrid approach is beyond the scope of this Article, and it is unnecessary to answer the question of whether there is a hybrid category of cases in which neither the free exercise clause nor another constitutional right alone is sufficient to trigger strict scrutiny, but the two together are enough. The relevant point is that Smith specifically excluded from its reach Yoder-like cases that demand protection of parental rights. And the constitutional commitment to the privatization of child rearing means that the need to protect parents’ rights is at its height when the State is taking the extreme step of putting children into foster care. It is at that intervention that constitutional concerns to avoid the State overstepping into the business of child rearing are at their peak.
It should by now be clear that many of the points raised in this Part complicate, rather than answer, the question of when and whether there should be exceptions for foster care agencies to antidiscrimination requirements; hopefully it is also clear that these complications should lead to consensus on one matter: the unique aspects of foster care make it an inappropriate context in which to have the Supreme Court reconsider Smith. The arguments about whether to overturn Smith and what rule to replace it with are muddied by the competing interests that arise in the foster care context. These complications do not benefit those on either side of the larger questions about Smith and may even prevent the Court from reaching those questions if foster care cases fall into a hybrid exception to Smith. The additional set of constitutional rights at stake in foster care makes it the wrong vehicle for establishing a broader rule about whether religious minorities have the right to discriminate.
Worse, the rights of the families who are supposed to be served by foster care—who should be central to discussions of foster care’s purpose and constitutional dangers—would not be adequately represented in such a challenge. A Supreme Court decision that is primarily focused on whether to overturn Smith and, if so, what to replace it with is unlikely to give nuanced attention to the unique aspects of foster care—the kind of attention the OFFER Court gave and that was so clearly lacking in the Fulton decision. And there is grave risk that insufficient attention may lead to Supreme Court language that has unintended negative consequences for foster children and their families, particularly given that the litigants in a Fulton redux are likely to have no more interest in addressing the issues most critical to those families than the Fulton litigants did. There is always a risk that heated rhetoric around children’s best interests will be distorted to serve adult interests. Nowhere is it more critical to resist the dangers of the “child saver” mentality than in discussions about children in state care. One need not impugn the intentions of foster care agencies or those who aspire to become foster parents to say that the rights of foster children and their families should not be defined in cases in which they are not represented.
The Supreme Court rarely has the opportunity to address the constitutional rights of the families separated by the State who litigate those rights daily in dependency courts around the country. It does not diminish the significance of revisiting Smith to say that these families deserve more than to have their rights treated as a weigh station on the path down which the religious Right and LGBTQ advocates are racing.