Remembering Who Foster Care Is For: Public Accommodation and Other Misconceptions and Missed Opportunities in Fulton v. City of Philadelphia

Authors

Chris Gottlieb, NYU School of Law

Abstract

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.

Keywords

Child Abuse, Parents and Children, Child Welfare, Foster Care, Social Welfare

Disciplines

Law | Social Welfare Law

Recommended Citation

Chris Gottlieb, Remembering Who Foster Care Is For: Public Accommodation and Other Misconceptions and Missed Opportunities in Fulton v. City of Philadelphia, 44 Cardozo L. Rev. 1 (2022).
Available at: https://larc.cardozo.yu.edu/clr/vol44/iss1/3