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March 10, 2021 Feature

Wolves in Sheep’s Clothing: How Religious Exemption Laws for Discriminatory Private Agencies Violate the Constitution and Harm LGBTQ+ Families

Kharis Lund


Kristy and Dana Dumont, who have been together for over a decade, seemed to be the “ideal” prospective parents.1 They had been preparing for the last several years to welcome children into their home, moving to an idyllic neighborhood in the suburbs with a spacious yard and no shortage of nature trails nearby.2 They had also made sure that there was a good school district and that their new house was ready for their future children.3 Despite all of their preparation and enthusiasm, however, they were denied by two tax-funded child-placing agencies in their area.4 The reason for the denial? Their sexual orientation. The fact that they were a same-sex couple meant that they did not meet the religious criteria that the agencies applied.5

Their story is in no way unique. Dr. Christopher Harris––a remarkably accomplished pediatric pulmonologist and former president of GLMA: Health Professionals Advancing LGBT Equality––struggled at first to adopt.6 He would wait months without word from faith-based child placing agencies, only to find out that heterosexual participants in his parenting classes had already been placed with children.7

Faith-based child placing agencies have a long history in the United States. Faith-based agencies were some of the first child welfare organizations to emerge in the United States in the mid-nineteenth century.8 More recently, in the years following Roe v. Wade,9 a host of conservative Christian agencies have gained prominence.10 Some organizations have networks that span the country and the globe.11 Some organizations make clear their opposition to same-sex relationships.12 However, some prospective parents who are LGBTQ+ have learned that they failed to meet the agency’s religious criteria only after they had expended significant time trying to work with the organization.13

When religious child placement agencies with state contracts are permitted to discriminate in this way, prospective parents who are LGBTQ+ may have few options, especially in states where private agencies control the placement of a majority of the state’s children.14 Since states often contract with private child welfare agencies to provide foster care and adoption services, “the distinction between public and private action has become blurred.”15

This is all particularly concerning given that LGBTQ+ people are seven times more likely to foster or adopt than their heterosexual counterparts.16 With over 420,000 children in foster care and 122,000 children waiting to be adopted,17 additional loving and capable parents are needed.18 To turn away otherwise-qualified prospective parents, solely based on their sexual orientation or gender identity, is to further deprive a system that is already burdened of one of its key components, which is directly antithetical to the primary goal of the child welfare system.19

Additionally, often forgotten from these debates are the actual children in foster care and those awaiting adoption, many of whom identify as LGBTQ+ themselves.20 These children and youth are particularly vulnerable, and placing them with loving families who will affirm their identities is crucial to their mental health and well-being.21 Furthermore, LGBTQ+ people may be more likely to adopt children who are deemed “hard to place,” including children with disabilities.22

While there is no doubt that faith-based organizations often do fill a gap in child welfare services and perform crucial functions for the community,23 using taxpayer dollars to fund such organizations when they discriminate presents not just ethical questions, but grave constitutional ones as well. In examining both the case law and policy implications related to LGBTQ+ parenting in the United States, the government should refuse to allow faith-based exemptions for organizations that wish to engage in discrimination against same-sex couples and/or transgender couples in child welfare services. Discrimination in child welfare based on sexual orientation and/or gender identity is a violation of both the Fourteenth Amendment’s Equal Protection Clause and the First Amendment’s Establishment Clause.24 Not only does discriminating against otherwise-qualified LGBTQ+ parents have no rational relationship to a legitimate governmental objective, it actually undermines the government’s stated interest in providing for the safety and well-being of the children in their care.25 Furthermore, when government agencies contract with faith-based organizations that discriminate in performing a government function, they violate the Establishment Clause, which mandates separation of church and state and bars states from stipulating religious criteria as a prerequisite to receiving services.26

The Supreme Court has in recent years recognized LGBTQ+ rights in a variety of different areas including marriage27 and employment.28 There has also been a counter-wave of mounting pressure from those who argue that the Free Exercise Clause requires religious exemptions to laws that prohibit discrimination based on sexual orientation, even for entities that are licensed by or provide services under contract with government agencies.29 This conflict may be addressed by the Supreme Court in Fulton v. City of Philadelphia, a pending case concerning whether or not government agencies may stop contracting with private faith-based child welfare services when those services have policies of turning away same-sex couples.30

This Essay advances a critique to challenge the constitutionality of religious-based exemptions in the context of child welfare agencies, contextualized through case law and legislation that have laid the groundwork for the current LGBTQ+ parenting landscape in the United States.31 In examining important case law for LGBTQ+ parenting rights in the nation, this Essay also attempts to frame the critical constitutional questions at issue here in light of Fulton.

This Essay proceeds in three parts. Part I begins with a background on the history of LGBTQ+ fostering and adoption laws in the United States, focusing on a few major cases on both the state and federal levels. Part II will discuss the merits of the arguments in Fulton, focused specifically on the constitutional arguments in favor of denying religious exemptions to faith-based and government-contracted organizations that discriminate against LGBTQ+ parents. Finally, Part III of this Essay will discuss Establishment Clause and Equal Protection issues presented by religious exemptions. The conclusion will highlight the work that is yet to be done in providing real protections to LGBTQ+ prospective parents.

I. Background

The first laws restricting LGBTQ+ parents’ rights to foster and adopt in the United States started to gain prominence as both the LGBTQ+ civil rights movement32 and the conservative pro-adoption/anti-abortion movement33 were pushed to the center of the nation’s collective consciousness. Before the 1960s and 70s, LGBTQ+ people were rarely discussed in the public sphere, and while it was nearly impossible for LGBTQ+ parents to adopt children without great difficulty, few states had laws explicitly banning or limiting LGBTQ+ parents’ ability to adopt.34

A. The History of a Florida Statute Banning Same-Sex Adoption

In 1977, the Florida State Legislature enacted Florida Statutes § 63.042(3), which provided that “[n]o person eligible to adopt under this statute may adopt if that person is a homosexual.”35 This law, which remained in place for over three decades after its enactment, was consistently upheld even into the early 2000s.36 In fact, in 2004, the Eleventh Circuit rejected a claim by several gay foster parents or guardians and children they had been raising, alleging that the law violated due process and equal protection rights.37 The court in Lofton refused appellants’ invitation to recognize a fundamental right to family integrity for groups of individuals who had formed deeply loving emotional bonds, stating that “[h]istorically, the Court’s family and parental-rights holdings have involved biological families.”38 Furthermore, the court stated that the then-recent Supreme Court decision in Lawrence v. Texas39 could not be inferred to create a fundamental right to adopt for “homosexual persons,” since the context here was different than in Lawrence.40 With regards to the Equal Protection challenge, the court accepted as plausible Florida’s arguments that the statute was rationally related to the state’s interests in furthering “the best interests” of adopted children by placing them in families with a married mother and father for stability and “heterosexual rolemodeling.”41

It was not until Florida Department of Children and Families v. X.X.G. in September 2010 that the Florida District Court of Appeal for the Third District affirmed an order finding the statute violated the Equal Protection Clause of Florida’s state constitution.42 In 2015, Governor Rick Scott signed into law a bill to formally repeal the ban on LGBTQ+ adoption in Florida.43

B. “The Best Interests of the Child,” Obergefell, and the Rise of Religious Exemptions

As far back as the 1950s, fear-based language similar to that employed in Lofton was being utilized in decisions to legitimize discrimination against LGBTQ+ parents in custody proceedings.44 Some courts applied the “best interests of the child”45 standard with anti-LGBTQ+ bias, despite evidence that the LGBTQ+ identity of the parents has no impact on the stability of the home or the child’s sexual orientation or gender identity.46 These courts relied on a range of harmful stereotypes about LGBTQ+ people, including that having gay parents might influence the children to become gay, that the children of gay or transgender parents would face an increased amount of shame and stigma, and that unmarried gay parents were not as good role models as straight married mothers and fathers.47

One illustration of the way in which “the best interests of the child” framework was used to delegitimize LGBTQ+ parents was through amendment of § 78-30-9 of the Utah Code.48 On March 14, 2000, Utah amended its child welfare law to explicitly require a court in an adoption proceeding to “make a specific finding regarding the best interest of the child, taking into consideration information provided to the court . . . relating to the health, safety, and welfare of the child and the moral climate of the potential adoptive placement.”49 Furthermore, this law included legislative findings “that it is not in a child’s best interest to be adopted by a person or persons who are cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state.”50 Because marriage equality had not yet reached Utah in 2000, one effect of this legislation was to keep LGB people who lived with their partners from being able to adopt or foster.51

Following Florida’s amendment in 1977,52 other states similarly restricted same-sex parents from adopting.53 New Hampshire serves as one such example; it amended its adoption statute in 1987 to provide that “any individual not a minor and not a homosexual may adopt.”54 This legislation was in effect until it was repealed in 1999.55

In addition to statutory provisions explicitly banning adoption by same-sex couples, anti-sodomy statutes were also used to deny LGBTQ+ prospective parents the opportunity to adopt or foster. For example, Johnston v. Missouri Department of Social Services showed how Missouri state officials used an anti-sodomy criminal law to conclude that placement with lesbian or gay foster parents was not in “the best interests of the child.”56 This case involved Lisa Johnston, a woman who sued the Children’s Division of the Missouri Department of Social Services (MDSS) after they denied her application for a Missouri foster care license while conceding that had she not been a lesbian, she and her partner would have made exemplary prospective foster parents.57 The Director of MDSS had affirmed the agency’s denial, ruling that the agency’s policy required it to consider “first and foremost the best interests of the child to be fostered”; Missouri law criminalized sexual relations among individuals of the same sex; foster parents were required to have a “reputable character”; it was not in the best interests of a foster child to be placed with gay or lesbian parents; and Johnston did not meet the requirements to be a foster parent.58 The court reversed this determination and held that the agency’s finding that Johnston lacked the “reputable character” required to be a foster care parent was unsupported by the evidence in the administrative record.59 The court further found that the Director had erroneously based his determination that Johnston lacked “reputable character” solely on the Missouri sodomy statute, which was unconstitutional in light of the Supreme Court’s decision in Lawrence v. Texas.60

Beginning in the early- and mid-2000s, states finally began to drop their outright bans on LGBTQ+ fostering and adopting,61 culminating in 2015 with the seminal marriage equality case Obergefell v. Hodges, which explicitly stated that one of the benefits of marriage involved the ability to adopt children.62 In a post-Obergefell world, all 50 states now allow adoption by married LGBTQ+ parents.63

Although Obergefell certainly changed the landscape for married LGBTQ+ prospective parents, some adoption laws required marriage as a prerequisite for joint adoption,64 and Justice Anthony Kennedy’s opinion had nothing to say about unmarried couples or single people.65 It also failed to address whether or not private organizations could discriminate against same-sex or transgender couples in adoption services.66

Moreover, in what some have described as a backlash to Obergefell, some states have since enacted laws that carve out exemptions that allow faith-based, government-funded child welfare agencies to refuse to place children with LGBTQ+ people.67 According to the Movement Advancement Project, 11 states now expressly permit state-licensed child welfare agencies to refuse to place children with LGBTQ+ foster parents if doing so would conflict with their sincerely held religious beliefs.68

Furthermore, the administration of President Donald Trump was supportive of a push for greater religious liberty exemptions at the expense of LGBTQ+ people. The U.S. Department of Health and Human Services (HHS) announced in November 2019 that it would stop enforcing a nondiscrimination rule from President Barack Obama’s administration, and proposed a new rule offering recipients of federal grants religious liberty protections under federal law.69 HHS administers federal programs that provide financial support to states for foster care and adoption services.70 The Obama administration regulation prohibited discrimination in programs receiving funding from HHS, based on sexual orientation and gender identity as well as other protected categories, and required funding recipients to recognize same-sex marriages.71

While HHS contended that these policy changes would allow it to not infringe on religious freedoms in its operations of grants,72 what they actually do in practice is allow religious agencies to infringe on the rights of LGBTQ+ people and children in foster care. In March 2020, three LGBTQ+ equality organizations sued HHS to challenge its proposed November 2019 rule relating to grant administration and regulation, stating that HHS’s actions ran contrary to the agency’s stated mission of enhancing the health and well-being of all Americans, and put LGBTQ+ youth’s health and well-being at increased risk.73 The complaint also alleged that by gutting antidiscrimination laws on the grounds of protecting religious liberty, HHS was “allow[ing] religion to be weaponized to discriminate against” LGBTQ+ people and disregarding “other constitutional constraints on such discrimination.”74

The result of these conflicts is a fierce clash, on one side of which are those who argue that exemptions for faith-based agencies are an important aspect of religious liberty.75 On the other side of this divide, there are those who argue that providing exemptions for agencies that discriminate is a potent violation of both the Equal Protection Clause and the Establishment Clause.76 As discussed in the next Part of this article, the Fulton case presents the Supreme Court with an opportunity to resolve these disputes.

II. Fulton v. City of Philadelphia

The central issue in Fulton is whether Catholic Social Services (CSS)––a faith-based agency that contracted with the city but has a policy that denies their publicly funded services to married same-sex couples––is entitled to a preliminary injunction on its First Amendment Free Exercise claim.77 The preliminary injunction application challenged Philadelphia’s termination of foster care referrals to the agency in accordance with the City’s nondiscrimination policy.78

A. Fulton’s Facts and Procedural Posture

The investigation that led to Philadelphia’s cessation of foster care referrals to CSS began when a Philadelphia Inquirer reporter called the Department of Human Services (DHS) Commissioner Cynthia Figueroa to state that the newspaper was working on an article about how two publicly funded foster care agencies, CSS and Bethany Christian Services, “would not work with same-sex couples as foster parents.”79 Subsequently, Figueroa contacted both Bethany Christian Services and CSS, along with several other faith-based foster care agencies and one secular agency that contracted with the City, to determine what these agencies’ policies were regarding same-sex couples.80 CSS and Bethany confirmed that they had policies to deny foster care certification to same-sex couples.81 None of the other organizations that Figueroa contacted had such policies discriminating against same-sex couples.82

Figueroa met with CSS to attempt to resolve the dispute, but ultimately, CSS maintained that in accordance with their religious beliefs, they would continue to not certify same-sex married couples.83 Shortly after the meeting, CSS received notice that DHS would no longer be referring new children to the agency and was instituting an “intake freeze.”84

At the district court level, the case ultimately turned on two questions. The threshold question, whether CSS’s provision of services met the definition of “public accommodations” subject to Philadelphia’s Fair Practices Ordinance (this was primarily a disagreement about statutory interpretation), was dispensed with quickly.85

B. Constitutional Issues

A second question that the case turned on, and ultimately the question that is pending before the Supreme Court, is whether CSS may nevertheless disregard the nondiscrimination provisions of the Fair Practices Ordinance under a theory that forcing it to comply is a violation of the Free Exercise Clause.86 Under Employment Division, Department of Human Resources of Oregon v. Smith,87 the Free Exercise Clause is not violated when religious exercise is impacted as an “incidental effect of a generally applicable and otherwise valid” law.88 However, “[a] law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance that interest.”89

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,90 the Supreme Court ruled on narrow grounds against a civil rights agency that required a baker who asserted religious objections to same-sex marriage to bake a cake for a same-sex wedding, without reaching broader Free Exercise and Free Speech claims the bakery raised in opposing Colorado’s enforcement of a nondiscrimination law.91 The Court found that the Colorado Civil Rights Commission displayed clear hostility to the baker’s religious beliefs, unfairly targeting him and failing to provide him with the “neutral and respectful consideration” his claims deserved.92 The Commission disparaged the baker’s religious beliefs as “despicable” and “merely rhetorical,” and compared his “invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”93 The Supreme Court did acknowledge that “the State’s interest could have been weighed against [the baker’s] sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed,” but it found that state officials had failed to do so in this case, noting “[t]he official expressions of hostility to religion in some of the commissioners’ comments.”94

CSS first argued, in an attempt to have the court subject the defendants’ actions to strict scrutiny, that the City and DHS targeted the agency “purely based on its religious beliefs.”95 However, both lower courts found that there was no persuasive evidence in the record that showed that DHS or the City had unfairly targeted CSS.96 In fact, the record showed that DHS officials had actually worked to try and keep their relationship with CSS, and in several instances had placed children with CSS foster families despite the “intake freeze” (for example, if a child’s sibling had previously been placed with CSS).97 Although the record did show that Figueroa used some religiously tinged language in her meeting with CSS, including stating that “it would be great if we could follow the teachings of Pope Francis,”98 CSS’s argument that this is evidence of targeting based on religious belief is unpersuasive. Looked at in context, the language Figueroa used––while no doubt religious––was arguably simply an attempt to find some common ground and a solution to their impasse.99 The Court distinguished Masterpiece Cakeshop, finding that City officials provided “respectful consideration” of CSS’s position and that Figueroa neither disparaged CSS’s religion (that she herself shared) nor acted with hostility towards them based on their religious views.100 Additionally, in rejecting a state-law claim under Pennsylvania’s Religious Freedom Protection Act,101 the Court found that the City’s actions in requiring compliance with a nondiscrimination law were “the least restrictive means of furthering a compelling government interest.”102

CSS also claimed as part of its Free Exercise challenge that because Figueroa called mostly faith-based agencies to determine what their policies were on serving same-sex couples, the laws were not applied with neutrality.103 However, Figueroa had only been tipped off that two agencies––CSS and Bethany––refused to work with same-sex couples, and they did so for religious reasons.104 The Third Circuit reasoned that it made sense she would then primarily call religious organizations that contracted with the City because she had little reason to think nonreligious agencies would similarly discriminate.105 Further supporting the City’s argument that it applied its antidiscrimination laws neutrally was the fact that Figueroa had also called a non-faith-based agency to check its policy regarding same-sex couples.106 Ultimately, the Third Circuit noted that while sincerely held religious belief is always protected, conduct motivated by those religious beliefs is not entitled to “special protections or exemption from general, neutrally applied legal requirements.”107

CSS’s second constitutional argument was that its First Amendment Rights under the Establishment Clause were violated by the City’s actions.108 As evidence of discriminatory treatment because of its Catholic religious values, CSS primarily pointed to Figueroa’s statement concerning the Pope.109 The Third Circuit did not seem to think much of this argument, noting that the City continued to work with CSS in other contexts, and that Bethany Christian Services opposed same-sex marriage for religious reasons but was able to receive foster care referrals again after it agreed to “cease discriminating against same-sex couples.”110

While the Third Circuit’s ruling in the case may appear straightforward, with a conservative Supreme Court that has in recent years been friendly to those who have filed constitutional challenges with the aim of “protecting” religious liberty,111 it remains to be seen whether this decision will be an affirmation that religious beliefs do not entitle faith-based child welfare organizations to special exemptions or whether it will be a gross misapplication of First Amendment religious liberty protections.

III. Exemptions for Faith-Based Agencies Violate Equal Protection and the Establishment Clause

Under the Equal Protection Clause, laws that distinguish between classes of individuals “must be rationally related to a legitimate governmental purpose.”112 For LGBTQ+ individuals, this mandate suggests that unless there is a legitimate and plausible governmental objective for differentiating between LGBTQ+ prospective parents and non-LGBTQ+ prospective parents, the state may not treat LGBTQ+ individuals differently in public child welfare services. While the issue may not appear quite so simple when applied to private faith-based agencies that contract with the government and receive public funds, the court in Fulton suggested that Philadelphia and DHS had reason to be concerned about the likelihood of such a constitutional challenge from same-sex married couples should the City exempt contracting agencies from complying with the Fair Practices Ordinance.113

One of the initial hurdles of an Equal Protection challenge in this context is establishing that faith-based and publicly funded agencies that contract with the state to provide child welfare services are actually considered “state actors.”114 However, another option LGBTQ+ prospective parents have to sidestep the hurdle of proving that a private party is a state actor is going ahead and suing a state actor or state agency directly.115 Based on the recent Dumont litigation,116 this seems like a potentially successful route.

Once it has been established that there is a sufficient “sovereign” for the purposes of the Equal Protection Clause, the next inquiry is whether or not there is a legitimate and plausible governmental objective for differentiating between LGBTQ+ prospective parents and non-LGBTQ+ prospective parents in child welfare services. As for determining the appropriate standard of review, the level is determined by the nature of the right at issue or the class of people that the right affects.117 As sexual orientation and gender identity are not considered “suspect or quasi-suspect class[es],” rational basis review is presumed to be the standard.118 This level of scrutiny, occupying the lowest level, simply asks if there is a conceivable rational relationship between the challenged action and a legitimate government interest.119 However, an Equal Protection challenge in this case is not without some teeth. In seminal cases involving LGBTQ+ people, the Supreme Court appears to have utilized a standard that is sometimes referred to as “rational basis with bite,” where the court applies a form of heightened scrutiny without acknowledging this approach.120 This level of review has most commonly been utilized where the rule of law has no rational relationship to a stated governmental interest and where it discriminates against politically unpopular minority groups.121

Whatever the level of scrutiny, the requirement remains that there be a legitimate governmental objective.122 In this case, it is unclear how allowing faith-based agencies to discriminate against LGBTQ+ people is rationally related to any governmental objective. In child welfare, the framework under which decisions are made is still generally the “best interests of the child.”123 A variety of factors are taken into account, with the “child’s ultimate safety and well-being the paramount concern.”124 In 2020, arguing that safety of children is a reason to discriminate against LGBTQ+ parents is a ridiculous and dangerous proposition. Study after study has shown that children of LGBTQ+ parents are just as well-adjusted and healthy as children of heterosexual parents.125 In a series of social science studies, it was also consistently found that children of LGBTQ+ parents made friends and formed healthy peer relationships just as well as their peers.126 Additionally, for LGBTQ+ children, having a home that is affirming of their identities is actually closely tied with safety and well-being.127

The government also presumably has the objective of wanting to place as many children in homes with loving families as possible. Since studies have found that LGBTQ+ people are more likely to adopt than their straight counterparts, and that not allowing LGBTQ+ individuals to adopt may adversely impact opportunities for children to be adopted from foster care,128 this also seems to tilt in favor of there being no legitimate governmental objective advanced through discriminating against LGBTQ+ parents.

In addition to the Equal Protection Clause, providing exemptions to faith-based agencies that discriminate against LGBTQ+ prospective parents is also a violation of the Establishment Clause of the First Amendment. This sort of challenge utilizes the Establishment Clause in a way that is diametrically opposed to how CSS uses the same Clause in Fulton.129 The Establishment Clause, which protects from the establishment of religion,130 prohibits the government “from passing laws that favor one religion over another, or laws that favor religion over non-religion.”131 Laws that exempt faith-based private agencies in child welfare from nondiscrimination laws impermissibly accommodate and advance religion to the detriment of LGBTQ+ prospective parents, and foster children. When the government contracts with and funds faith-based private agencies in child welfare that do not serve LGBTQ+ people, it allows these agencies to discriminate based on their specific set of religious beliefs. By advancing these particular beliefs in a way that constricts the availability of child welfare services based on the sexual orientation of the prospective foster or adoptive parent, it irreparably harms LGBTQ+ individuals as well as foster children, and entangles church with state.

Estate of Thornton v. Caldor, Inc. is instructive here, as it highlights the grave issue of imposing a certain religious framework onto people who may not share that framework.132 In this case, the Supreme Court invalidated a Connecticut statute that required that all workers be allowed to refuse to work on the Sabbath, noting that by providing Sabbath observers with this right, they were forcing secular businesses to conform to religious concerns in violation of the Establishment Clause.133 Just as that Connecticut statute unconstitutionally gave workers the right to summarily refuse to work on the Sabbath, religious exemptions unconstitutionally give faith-based organizations the right to summarily refuse to work with LGBTQ+ people. The whole concept of separation of church and state is essentially a dead letter if religious organizations are not only deeply embedded in the crucial government function of providing child welfare services using government funds but are also using their position of authority to discriminate against and harm an already-marginalized group.

IV. Conclusion

Private faith-based agencies have for many years provided essential child welfare services in conjunction with an often under-resourced and over-burdened public sector. In so doing though, the line between public and private has been blurred. Despite that blurred line, faith-based agencies argue that exemptions to nondiscrimination laws allow them to continue to serve children in need while maintaining their religious values. As the Third Circuit noted in Fulton, while religious belief is certainly protected, conduct motivated by those beliefs is not entitled to special protections or exemptions from “general, neutrally applied legal requirements.”134 With hundreds of thousands of children in the country in foster care and waiting to be adopted, the misapplication of constitutional protections for faith-based agencies that discriminate is an unaffordable error. Loving and qualified parents willing to foster and adopt are more crucial now than ever, and LGBTQ+ people are the group most likely to do that. Beyond just the child welfare implications of allowing private, faith-based agencies to discriminate, these exemptions for private agencies are a violation of both the Equal Protection Clause and the Establishment Clause. Laws that continue to provide exemptions for faith-based agencies to discriminate against LGBTQ+ people are an egregious abuse of discretion that put an already marginalized community at further risk. Instead of leaving vulnerable communities at risk with no recourse and using taxpayer money to sanction discrimination, the government should be focused on continuing to expand the pool of prospective foster and adoptive parents, including the thousands of LGBTQ+ parents who are equipped and willing to help the government meet this crucial need.

Fulton represents one such instance where the Supreme Court has an opportunity to clarify once and for all that such discrimination is a violation of the Constitution and also limits the pool of available loving and capable parents who are willing to adopt or foster. While the Court could limit a holding favoring Philadelphia to apply only to CSS and Philadelphia’s relationship,135 the Court should rule more broadly. Even if the Court does not apply Smith, the Court should follow the Third Circuit’s holding that Philadelphia has a compelling interest in ensuring that same-sex couples have the same opportunity to foster and adopt as their heterosexual counterparts in accordance with its antidiscrimination provision.136 Importantly, the Court should note that the City’s conduct was not motivated by religious animus and that the City applied its antidiscrimination provision in a general, neutrally applicable manner. Beyond Fulton, with the advent of a new administration in the White House,137 there is both a hope, and also an expectation, that President Joe Biden’s administration will ensure that private agencies contracting with the government are not given waivers to discriminate against LGBTQ+ prospective parents, and that all capable and loving prospective families are supported and protected in the shared goal of bringing crucial child services to all those in need.


1. States of Equality: Dana & Christy in MI, Fam. Equal. (Nov. 25, 2018),

2. Id.

3. See id.

4. Id.

5. Id.; see also Dumont v. Lyon, 341 F. Supp. 3d 706, 714 (E.D. Mich. 2018) (summarizing factual allegations in litigation against Michigan and agency officials). As part of a settlement agreement with the Dumonts and another couple, Michigan’s Child Services Agency agreed to enforce a nondiscrimination clause that would ensure that they no longer contracted with child placing agencies (CPAs) that turned away or referred to other CPAs “an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for services under a Contract or a Subcontract.” See Settlement Agreement § 1(b)–(d), Stip. of Voluntary Dismissal with Prejudice Ex. A, Dumont v. Gordon, No. 2:17-cv-13080-PDB-EAS (E.D. Mich. Mar. 22, 2019), ECF No. 82; see also Leslie Cooper, Same-Sex Couples Are Being Turned Away from Becoming Foster and Adoptive Parents in Michigan. So We’re Suing., Am. Civ. Liberties Union (Sept. 20, 2017, 10:30 AM), (noting that Michigan was “the first state to reverse course on this issue”). However, there is ongoing litigation over the policy between a faith-based child placement agency and Michigan officials. See Buck v. Gordon, 429 F. Supp. 3d 447 (W.D. Mich. 2019) (preliminarily enjoining Michigan officials from taking enforcement action against faith-based child placement agency), stay denied, No. 19-2185, 2019 U.S. App. LEXIS 34421 (6th Cir. Nov. 19, 2019), and appeal voluntarily dismissed, No. 19-2185, 2020 U.S. App. LEXIS 6125 (6th Cir. Feb. 27, 2020).

6. How Discrimination Against Qualified LGBTQ Parents Almost Stopped One of America’s Most Decorated Pediatric Pulmonologists from Ever Adopting His Daughter, Fam. Equal. (Aug. 22, 2018),

7. See id. Dr. Harris was eventually able to adopt his daughter Mia through an LGBTQ+-friendly agency. Id.

8. In 1853, Charles Loring Brace, a Protestant minister and social reformer, started one of the first prominent child welfare organizations, the New York Children’s Aid Society. Ellen Herman, Dep’t of Hist., Univ. of Or., Charles Loring Brace (1826–1890), The Adoption Hist. Project (Feb. 2012), Other early faith-based child welfare organizations include the Catholic Home Bureau, the Free Synagogue Child Adoption Committee (later renamed Louise Wise Services), and Catholic Charities. See Ellen Herman, Dep’t of Hist., Univ. of Or., Timeline of Adoption History, The Adoption Hist. Project (Feb. 2012),; Ellen Herman, Dep’t of Hist., Univ. of Or., First Specialized Adoption Agencies, The Adoption Hist. Project (Feb. 2012),; Our Story, Cath. Charities Archdiocese of N.Y., (last visited Dec. 18, 2020).

9. 410 U.S. 113 (1973) (seminal Supreme Court case finding abortion restrictions unconstitutional).

10. Some conservative Christian organizations and churches have encouraged adoption as a method to curb abortions. Kathryn Joyce, Shotgun Adoption, The Nation (Aug. 26, 2009),

11. See, e.g., Locations by State, Bethany Christian Servs., (last visited Jan. 2, 2021); Find Help, Cath. Charities USA, (last visited Jan. 2, 2021); Wait No More: Focus on the Family’s Foster Care and Adoption Program, Focus on the Fam. (2010),; see also Adoption Information Meetings, Holt Int’l, (last visited Jan. 2, 2021) (international adoption).

12. Focus on the Family includes on its website that the “six guiding philosophies” of its ministry, which “are apparent at every level throughout the organization,” include its view that marriage is only between one man and one woman. Our Vision, Focus on the Fam., (last visited Jan. 2, 2021).

13. Bethany Christian Services and St. Vincent Catholic Charities turned away same-sex couples in Michigan who brought litigation and settled with state officials. See supra notes 1–5 and accompanying text; see also Vanessa Romo, State-Funded Adoption Agencies in Michigan Barred from Refusing LGBTQ Parents, NPR (Mar. 22, 2019, 7:39 PM),

14. In 2003, Child Protective Services of Texas contracted with private agencies to care for almost 75% of the children in foster care. Ctr. for Pub. Pol’y Priorities, Privatization of Child Protective Services 1 (2005), In 2017, following a spike in child death rates as a result of abuse, the Texas Legislature passed Senate Bill 11, which further privatized Texas’s child welfare services. See Katy Vine, As Texas Privatizes Child Protective Services, Will the Horror Stories Go Unheard?, Tex. Monthly (Mar. 6, 2019), The bill, which allowed private contracted organizations to monitor children in foster care and adoptive homes, also included an amendment providing for the governor’s office to “establish a grant for faith-based groups helping in the child welfare system.” See Marissa Evans, Texas House Passes Child Welfare Reforms, Tex. Trib. (updated May 19, 2017),

15. Jessica Troisi Franey, Dependency Is Different: Why Religious Accommodations in Agency Adoptions Violate the Constitutional Rights of Same-Sex Families and Foster Youth, 16 Dukeminier Awards 1, 3 (2017).

16. Shoshana K. Goldberg & Kerith J. Conron, Williams Inst., UCLA Sch. of L., How Many Same-Sex Couples in the U.S. Are Raising Children? 1–3 (July 2018),

17. U.S. Dep’t of Health & Hum. Servs., Admin. for Child. & Fam., Child.’s Bureau, AFCARS Report No. 27 (2020), (preliminary fiscal year 2019 estimates as of June 23, 2020).

18. See John DeGarmo, The Foster Care Crisis: The Shortage of Foster Parents in America, Huffington Post (May 1, 2017, 8:54 AM),

19. See Allison M. Whelan, Denying Tax-Exempt Status to Discriminatory Private Adoption Agencies, 8 U.C. Irvine L. Rev. 711, 754 (2018).

20. See Jordan Blair Woods, Religious Exemptions and LGBTQ Child Welfare, 103 Minn. L. Rev. 2343, 2402–03 (2019).

21. See Child. Welfare Info. Gateway, Child.’s Bureau, U.S. Dep’t of Health & Hum. Servs., Supporting Your LGBTQ Youth: A Guide for Foster Parents (2013),

22. See Sarah Kaye & Katherine A. Kuvalanka, State Gay Adoption Laws and Permanency for Foster Youth, Md. Fam. Pol’y Impact Seminar (May 2006),

23. See Off. on Child Abuse & Neglect, Child.’s Bureau, U.S. Dep’t of Health & Hum. Servs., Community Partnerships: Improving the Response to Child Maltreatment 8, 13 (2010),

24. See U.S. Const. amend. XIV, § 1 (providing that “[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws”); id. amend. I (providing that “Congress shall make no law respecting an establishment of religion”).

25. See infra notes 112–28 and accompanying text.

26. See infra notes 129–33 and accompanying text.

27. See Obergefell v. Hodges, 576 U.S. 644, 675–76 (2015) (holding that same-sex couples have a fundamental right to marry, and state laws prohibiting same-sex marriage violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment).

28. Bostock v. Clayton Cty., 140 S. Ct. 1731 (2020) (holding that sexual orientation discrimination and discrimination based on transgender status are both subsets of discrimination “because of . . . sex” for purposes of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–2(a)(1)).

29. See infra Part II.

30. 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020). The Supreme Court heard oral arguments on November 4, 2020. Transcript of Oral Argument, Fulton v. City of Phila., No. 19-123 (U.S. Nov. 4, 2020), No decision had been issued as of the time of publication of this Essay.

31. There are a number of other areas not addressed here in which the Free Exercise and Establishment Clauses have created, and will no doubt continue to create, complicated questions of the permissible scope of religious exemptions.

32. See What You Need to Know About the History of Adoption, Am. Adoptions, (last visited Jan. 2, 2021); Dana Rudolph, A Very Brief History of LGBTQ Parenting, Fam. Equal. (Oct. 20, 2017),

33. See Jennifer L. Holland, Abolishing Abortion: The History of the Pro-Life Movement in America, The Am. Historian (Nov. 2016),; Joyce, supra note 10.

34. See What to Know About the History of Same-Sex Adoption, Considering Adoption, (last visited Jan. 2, 2021); see also Rudolph, supra note 32.

35. 1977 Fla. Laws, ch. 77-140, § 1. This law was officially amended in 2015. See Act of June 11, 2015, ch. 2015-130, § 2, 2015 Fla. Sess. Law Serv. ch. 2015-130 (C.S.H.B. 7013) (West) (deleting language quoted in text, which previously appeared at Fla. Stat. § 63.042(3)).

36. Before 2010, both state and federal courts upheld the ban. See Lofton v. Sec’y of Dep’t of Child. & Fam. Servs., 358 F.3d 804, 807, 827 (11th Cir. 2004).

37. Id. at 807–09, 827.

38. Id. at 812–13.

39. 539 U.S. 558 (2003). In Lawrence, the Court invalidated a long-standing Texas sodomy law that criminalized “deviate sexual intercourse” among people of the same sex, holding that criminalizing private same-sex sexual acts was a violation of the Fourteenth Amendment’s Due Process Clause. Id. at 563, 578–79.

40. According to the court, because Lofton involved minor children and a “statutory privilege” to adopt, in contrast to Lawrence, which involved a criminal prohibition and private conduct by consenting adults, it could not be inferred from Lawrence that a fundamental right for LGBTQ+ parents to adopt existed. Lofton, 358 F.3d at 815–17.

41. Id. at 818–20.

42. The court upheld a determination that the best interests of the children were not preserved by banning same-sex adoption, and also found that the record did not support the Department’s contention that LGBTQ+ people should be barred from adopting because their homes may have been less stable and more prone to domestic violence. Fla. Dep’t of Child. & Fams. v. X.X.G., 45 So. 3d 79, 86–87, 90–92 (Fla. Dist. Ct. App. 2010).

43. See Act of June 11, 2015, ch. 2015-130, § 2, 2015 Fla. Sess. Law Serv. ch. 2015-130 (C.S.H.B. 7013) (West) (amending Fla. Stat. Ann. § 63.042 (West 1977)); see also Associated Press, Gay Adoption Ban to Be Removed from Florida Laws After 4 Decades, Fla. Times-Union (June 11, 2015, 9:26 PM),; Mitch Perry, Rick Scott Signs Bill That Repeals Gay-Adoption Ban in Florida, Fla. Pol. (June 11, 2015),

44. During early lesbian and gay custody disputes, in some courts evidence of LGB sexual orientation could be used against parents in custody cases. See, e.g., Bennett v. Clemens, 196 S.E.2d 842, 843 (Ga. 1973); Immerman v. Immerman, 1 Cal. Rptr. 298, 301 (Dist. Ct. App. 1959); Commonwealth v. Bradley, 91 A.2d 379, 381–82 (Pa. Super. Ct. 1952).

45. This is the standard by which courts generally make custody and other decisions about children. Child Welfare Info. Gateway, Child.’s Bureau, U.S. Dep’t of Health & Hum. Serv., Determining the Best Interests of the Child (2020),

46. See Scott D. Ryan & Scottye Cash, Adoptive Families Headed by Gay or Lesbian Parents: A Threat . . . or Hidden Resource?, 15 U. Fla. J.L. & Pub. Pol’y 443, 446–51 (2004); see also Leslie Cooper & Paul Cates, Am. Civ. Liberties Union Found. Lesbian Gay Bisexual Transgender Project, Too High a Price: The Case Against Restricting Gay Parenting 4–6, 25–73 (2d ed. 2006),

47. See, e.g., Lofton v. Sec’y of Dep’t of Child. & Fam. Servs., 358 F.3d 804, 818–819 (11th Cir. 2004); see also cases cited supra at note 44.

48. Utah Code Ann. § 78-30-9(b), (3)(a) (2000) (renumbered and amended; now codified at Utah Code Ann. § 78B-6-102(2), (4)).

49. Act of Mar. 14, 2000, ch. 208, § 7, 2000 Utah Laws ch. 208 (West) (H.B. 103) (now codified at Utah Code Ann. § 78B-6-102(2)) (emphasis added).

50. Id. (now codified at Utah Code Ann. § 78B-6-102(4)).

51. See Kitchen v. Herbert, 755 F.3d 1193 (10th Cir.) (finding Utah prohibition on same-sex marriage unconstitutional), cert. denied, 135 S. Ct. 265 (2014).

52. See supra Part I.A.

53. Other states that expressly barred adoption by same-sex couples included Michigan, Mississippi, and Nebraska. Jerome Hunt & Jeff Krehely, State Antigay Adoption Policies Need to Go, Ctr. for Am. Progress (Oct. 12, 2020, 9:00 AM),

54. Act of July 24, 1987, ch. 343, § 1, N.H. Laws (codified at N.H. Rev. Stat. Ann. § 170-B:4 (1987)).

55. Act of July 2, 1999, ch. 18, § 2, N.H. Laws (amending N.H. Rev. Stat. Ann. § 170-B:4 in part by deleting “and not a homosexual”).

56. No. 0516-CV09517, 2006 WL 6903173, at *2–3 (Mo. Cir. Ct. Feb. 17, 2006)).

57. Id. at *2–4.

58. Id. at *3.

59. Id. at *4–6. The agency made this determination based solely on Johnston’s sexual orientation. Id. at *3–4.

60. Id. at *4–5 (citing Lawrence v. Texas, 539 U.S. 558 (2003)). The Missouri law made it a misdemeanor for a person to have sexual intercourse with another person of the same sex. Mo. Ann. Stat. § 566.090 (West 2006) (held unconstitutional by Johnston, 2006 WL 6903173). The Johnston court held that this was contrary to Lawrence v. Texas, which had struck down a similar sodomy law in Texas for being a violation of due process. Johnston, 2006 WL 6903173, at *3.

61. New Hampshire’s adoption statute was amended to remove the prohibition on LGB adoption and foster parenting in 1999. See supra notes 54–55 and accompanying text.

62. 576 U.S. 644, 668 (2015).

63. See Rudolph, supra note 32.

64. See id.

65. Obergefell, 576 U.S. at 668; see Adoption and Same-Sex Couples: Overview, FindLaw (Nov. 16, 2018),

66. Adoption and Same-Sex Couples: Overview, supra note 65.

67. Id.; see, e.g., Ian Simpson, Kansas Lawmakers Pass Adoption Bill Critics Say Biased Against Gay Couples, Reuters (May 4, 2018, 12:46 PM),

68. Equality Maps: Foster and Adoption Laws, Movement Advancement Project, (last visited Jan. 8, 2021) (identifying states). Alabama’s law applies to agencies that do not receive government funding. Id.; see Ala. Code § 26-10D-3(2). Michigan’s approach is in litigation. See supra note 5.

69. See Press Release, U.S. Dep’t of Health & Hum. Servs., HHS Issues Proposed Rule to Align Grants Regulation with New Legislation, Nondiscrimination Laws, and Supreme Court Decisions (Nov. 1, 2019),; Harris Meyer, HHS Sued to Block Elimination of Non-bias Protections in Grants, Modern Healthcare (Mar. 19, 2020, 4:12 PM),

70. See Focus Areas, Child.’s Bureau: An Office of the Admin. for Child. & Fams., U.S. Dep’t of Health & Hum. Servs., (last visited Dec. 28, 2020).

71. 45 C.F.R. § 75.300(c) (“It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.”), (d) (“In accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. This does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law as something other than a marriage.”).

72. Meyer, supra note 69.

73. See Compl., Family Equality v. Azar, No. 1:20-cv-02403 ¶¶ 6, 53, 57, 59–64 (S.D.N.Y. Mar. 19, 2020), ECF No. 1.

74. Id. ¶ 5.

75. See, e.g., Brad Polumbo, Protecting Religious Adoption Agencies Won’t Stop LGBT People from Adopting, Nat’l Rev. (July 31, 2018, 6:30 AM),; Press Release, Becket Fund for Religious Liberty, Supreme Court Will Decide Fate of Faith-Based Foster Care (Feb. 24, 2020),

76. See Frank J. Bewkes et al., Welcoming All Families, Ctr. for Am. Progress (Nov. 20, 2018, 8:30 AM),; see also Franey, supra note 15, at 33–36; cf. Sean Cahill et al., The Fenway Inst., Executive Branch Actions Promoting Religious Refusal Threaten LGBT Health Care Access 12–13 (2016),

77. Fulton v. City of Phila., 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020). While CSS raised other legal issues in the district and circuit courts, the questions presented in the petition for certiorari focused on the Free Exercise Clause claims. Petition for a Writ of Certiorari at i, Fulton v. City of Phila., No. 19-123 (July 22, 2019),

78. Fulton, 922 F.3d at 146–47.

79. Id. at 148.

80. Fulton v. City of Phila., 320 F. Supp. 3d 661, 672 (E.D. Pa. 2018), aff’d, 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020).

81. Fulton, 922 F.3d at 148. CSS also noted that it would not certify or provide home studies to same-sex couples or LGBTQ+ individuals unless they vowed to live single. Fulton, 320 F. Supp. 3d at 672.

82. Fulton, 922 F.3d at 148.

83. Id. CSS would not certify any unmarried, cohabiting couples, and does not recognize same-sex marriage. Id.

84. Id. at 149. So-called intake freezes had been instituted by the DHS officials when they had concerns that they may have to stop working with an agency. Id.

85. Fulton, 320 F. Supp. 3d at 679 (analyzing Philadelphia Fair Practices Ordinance § 9-1102(1)(w),

86. Id. The Free Exercise Clause of the First Amendment states that “Congress shall make no law . . . prohibiting the free exercise [of religion].” U.S. Const. amend. I. This applies to states through the Fourteenth Amendment Due Process Clause. Fulton, 320 F. Supp. 3d at 680.

87. 494 U.S. 872 (1990).

88. Id. at 878–80; see also Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531 (1993) (“[A] law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”). One of the questions before the Supreme Court in Fulton is whether Smith should be “revisited.” Petition for a Writ of Certiorari, supra note 77, at i.

89. Church of the Lukumi Babalu Aye, Inc., 508 U.S. at 531–32.

90. 138 S. Ct. 1719 (2018).

91. See id. at 1728–29, 1732.

92. Id. at 1729–30.

93. Id. at 1729.

94. Id. at 1732.

95. Fulton v. City of Phila., 320 F. Supp. 3d 661, 686 (E.D. Pa. 2018).

96. See id. at 687–90; see also Fulton v. City of Phila., 922 F.3d 140, 156–59 (3d Cir. 2019).

97. Fulton, 922 F.3d at 149–51.

98. Id. at 157.

99. Figueroa herself is Catholic, and the court found that her comment about Pope Francis was “best viewed as an effort to reach common ground with [CSS] by appealing to an authority within their shared religious tradition.” Id.

100. Id. at 157–59.

101. 71 Pa. Stat. and Cons. Stat. §§ 2401–07 (West).

102. Fulton, 922 F.3d at 163.

103. Id. at 157.

104. Id.

105. Id.

106. Id.

107. Id. at 159.

108. Id. at 159–60.

109. Id.

110. Id. at 149 n.2, 151, 160.

111. In the 2019–20 term, after granting certiorari in Fulton, the Supreme Court ruled in favor of Free Exercise claims raised in other cases. In Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), the Court found that state officials’ application of a state constitutional “no-aid provision” to bar the use of state-supported private school scholarships at religious schools discriminated based on the “religious character” of the schools and was unconstitutional. Id. at 2255. Espinoza arose as a result of a program the Montana Legislature established that granted tax credits to those who donated to organizations that awarded scholarships for private school tuition. Id. at 2251. In order to reconcile this program with a Montana constitutional provision that barred government aid to schools “controlled in whole or in part by any church, sect, or denomination,” Montana officials issued Rule 1, which barred families from using the scholarships at religious schools. Id. at 2252. The Court applied strict scrutiny and found the restrictions violated the Free Exercise Clause. Id. at 2260–61. Also, the Court expanded the scope of the “ministerial exception,” first outlined in Hosanna-Tabor Evangelical Church v. Equal Opportunity Employment Commission, 565 U.S. 171 (2011). This exception gives religious organizations independence to handle employment disputes free from court interference when the disputes involve “ministers,” considering factors such as the person’s title and the religious functions performed by the person. Id. at 188–92. In Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020), the Supreme Court held that the employment discrimination claims of two elementary school teachers fell under the Hosanna-Tabor exception, noting that although the teachers were not given the title of “minister” and had limited formal religious training, religious education of the students was “the very reason for the existence of most private religious schools.” Id. at 2055. Most recently, in November 2020, the Supreme Court granted preliminary injunctive relief pending appeal in a challenge by religious organizations to New York Governor Andrew Cuomo’s restrictions on religious gatherings during the COVID-19 pandemic. Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (per curiam). The Court found a likelihood of success on the merits of the organizations’ claims that the restrictions violated the Free Exercise Clause by treating secular activities more favorably than religious ones and severely limiting in-person attendance at religious gatherings. Id. at 66–67.

112. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).

113. The district court in Fulton stated that DHS and Philadelphia have an interest in avoiding possible Equal Protection and Establishment Clause claims that would result if CSS and other faith-based government contractors were allowed exemptions to the public accommodations/antidiscrimination laws in the Fair Practices Ordinance. Fulton v. City of Phila., 320 F. Supp. 3d 661, 704 (E.D. Pa. 2018).

114. The Fourteenth Amendment requires that a “state” not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). In some cases, plaintiffs have successfully alleged that private child welfare agencies with government contracts are in fact state actors. See Brent v. Wayne Cty. Dep’t of Hum. Servs., 901 F.3d 656, 677 (6th Cir. 2018) (concluding that “plaintiffs have pleaded sufficiently that Methodist and the Children’s Center are state actors to survive a motion to dismiss”); Hall v. Smith, 497 F. App’x 366, 375 n.13 (5th Cir. 2012) (leaving open whether “a private child placement agency could be considered a state actor with respect to the foster child placement decisions it makes pursuant to a contractual relationship with a state”).

115. See Dumont v. Lyon, 341 F. Supp. 3d 706, 744 (E.D. Mich. 2018). This was the route that Kristy and Dana Dumont utilized when they filed a 42 U.S.C. § 1983 complaint alleging that the Director of the Michigan Department of Health and Human Services and the Executive Director of the Michigan Children’s Services Agency had a practice of permitting state-contracted and publicly funded child placing agencies to use religious criteria to screen prospective foster and adoptive parents for children in the foster care system. Id.; see also Rogers v. U.S. Dep’t of Health & Hum. Servs., 466 F. Supp. 3d 625, 647 (D.S.C. 2020) (denying motion to dismiss Establishment Clause claim where plaintiffs alleged state and federal defendants acted “in an effort to protect a specific [child-placement agency], Miracle Hill, and permit discrimination within South Carolina’s foster care program on the basis of Miracle Hill’s religious criteria”).

116. See supra note 115.

117. Jeremy B. Smith, Note, The Flaws of Rational Basis with Bite: Why the Supreme Court Should Acknowledge Its Application of Heightened Scrutiny to Classifications Based on Sexual Orientation, 73 Fordham L. Rev. 2769, 2772 (2005).

118. Kristapor Vartanian, Equal Protection, 10 Geo. J. Gender & L. 227, 235 (2009).

119. The rational basis test states that legislation is generally presumed valid and constitutional if the “classification drawn by the statute is rationally related to a legitimate state interest.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Intermediate scrutiny is a more heightened level of scrutiny that is used for gender and “illegitimacy.” Smith, supra note 117, at 2773. Strict scrutiny, which is the highest level of scrutiny, is used when there is a “suspect” class such as race or national origin, or when a fundamental right is involved. Id. at 2771 n.18, 2772–73.

120. Smith, supra note 117, at 2774, 2779–85 (discussing Romer v. Evans, 517 U.S. 620 (1996); Lawrence v. Texas, 539 U.S. 558 (2003)).

121. See id.

122. Cleburne Living Ctr., 473 U.S. at 446.

123. Determining the Best Interests of the Child, supra note 45, at 2.

124. Id. (surveying state approaches to “best interests” determinations).

125. See, e.g., Cooper & Cates, supra note 46, at 25–73 (summarizing multiple studies).

126. Id.

127. See N.Y.C. Admin. for Child. Servs., LGBTQ Affirming Foster and Adoptive Parents Needed,; Hum. Rts. Campaign, LGBTQ Youth in the Foster Care System,

128. See Kaye & Kuvalanka, supra note 22.

129. See supra notes 108–09 and accompanying text.

130. U.S. Const. amend. I; see supra note 24.

131. Cahill et al., supra note 76, at 12.

132. 472 U.S. 703 (1985); see Cahill et al., supra note 76, at 12.

133. Caldor, 472 U.S. at 706, 709–10.

134. Fulton v. City of Phila., 922 F.3d 140, 159 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020).

135. A limited holding would be similar to the route taken by the Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), although the Court in that case ruled against the civil rights agency.

136. Fulton, 922 F.3d at 162–65 (ruling for City under Pennsylvania state law that applies strict scrutiny for certain religious freedom claims), cert. granted on other grounds, 140 S. Ct. 1104 (2020); see supra notes 101–02 and accompanying text.

137. NBC has called the Biden administration “on track to be [the] most LGBTQ-inclusive in U.S. history.” Dan Avery, Biden Administration on Track to Be Most LGBTQ-Inclusive in U.S. History, NBC News (Dec. 4, 2020, 9:23 AM), Joe Biden’s own campaign website states, “By . . . proposing policies allowing federally funded homeless shelters to turn away transgender people and federally funded adoption agencies to reject same-sex couples . . . the Trump-Pence Administration has led a systematic effort to undo the progress President Obama and Vice President Biden made.” Out for Biden, Biden Harris,

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Kharis Lund


Kharis Lund is the first-place winner of the 2020 Howard C. Schwab Memorial Essay Contest, Senior Note Editor of the Cardozo Law Review, and a May 2021 J.D. candidate at the Benjamin N. Cardozo School of Law. She thanks the ABA’s Family Law Section for their support and belief in this project; the editors of the Family Law Quarterly for their tireless help; Professor Edward Stein at Cardozo Law School, whose seminar class sparked the writing of this article; and Sarah, for her encouragement and constant inspiration.