After Obergefell, it appeared for a time that common ground might be found.

For some, common ground was attractive for reasons of necessity—resolving questions left unresolved by the courts, as state lawmakers did in Utah (Golden Rule, Chapter 23). For others, the need to find common ground became more self-evident when LGBT advocates turned their attention from marriage to  securing those things that many of us take for granted: being able to work, find housing or dine at restaurants like everyone else (e.g., 695). Americans overwhelmingly support nondiscrimination protections—in fact, most Americans before Bostock v. Clayton County, Georgia thought it was already illegal to discriminate against people based on who they love or how they self-identify.

Nondiscrimination is a value shared by faith traditions, including some that condemn homosexuality (Religious Freedom, LGBT Rights, and the Prospects for Common Ground, Ch. 10). It would be unjust to deny a person a job if they were otherwise qualified just because of who they love or the God they worship or how they identify.

But where Americans might have gathered around justice as common ground—melding protections for the LGBT community with protections for persons of faith in a single law (Golden Rule, Chapter 23)—some have instead salted the earth. We have seen a lot of nonsense about bathrooms—that is, unfounded claims about “safety” posed by trans people. Those claims have been wielded to oppose nondiscrimination protections even in state housing laws. Patently, a trans person renting her own apartment poses no risk to anyone when using her own bathroom.

In our climate of continued friction, there appears little appetite to chart sensible win-win solutions. Tragically, this is true even when the most compelling reasons for common ground exist, namely, children.

As Marriage Equality chronicles at length, children played a central role in opening marriage to same-gender couples. The authors return in chapter after chapter (e.g., 318, 319, 553, 554, 578, 585, 608, 748, 749, 750, 751, 752), to April DeBoer and Jayne Rowse, named plaintiffs in DeBoer v. Snyder (552), who “were deliriously happy” (318) to adopt Nolan, a “colicky little” (318) child they nursed “through nightmares, late-night hunger, and health problems.”(318) They adopted their second child, Ryanne, when  “a nineteen-year-old mother ... brought Ryanne to the intensive care unit and said she wanted to give her up for adoption.” (318) Their third child, Jacob, “was born three months premature, weighing only one pound nine ounces.” (318)  The couple intended only to foster Jacob, “but his medical issues were too overwhelming” (318) for another family, so they took him too. By the time April and Jayne married, the couple had adopted “six-year-old Nolan, five-year-old Jacob, five-year-old Ryanne, three-year-old Rylee, and their newest addition, one-year-old Kennedy.” (751)

Adoption served in its own right as an “engine of liberalization” (721), in large measure because these families “epitomized the highest virtue sought by marriage advocates: complete self-sacrificing, other-regarding love and devotion to their children.” (319) Judge Richard Posner asked the “killer question during oral argument in the Indiana and Wisconsin marriage cases” (579):

Does a society recognizing lesbian and gay marriages provide adopted or fostered children the possibility for better life opportunities than a society that does not recognize those marriages or that affirmatively disrespects and even penalizes such families? (579)

Yet, as Fulton v. City of Philadelphia, Pennsylvania, now before the U.S. Supreme Court, drives home, the culture war struggle has shifted from marriage to children.  Fulton will decide, among other things, “whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs." The question posed is simple: do child placement agencies have to swear to place children with all comers or may they serve only some couples? 

Some states resolve this question by giving placement agencies “specific legal protections” to follow their convictions while requiring agencies to refer couples that they cannot serve to other willing providers. Michigan and Texas are two examples. See, e.g., Mich. Comp. Laws Ann. § 722.124e; Tex. Hum. Res. Code § 45.001. But a new iteration of state laws like Tennessee’s do not contain even this device to mitigate harm.

The allegation in Fulton is that Catholic Social Services (“CSS”), an agency that contracted with the City of Philadelphia to provide foster care placement services, “would not, based on their religious objection, accept same-sex couples as foster parents.” Weirdly, the city has “failed to find a single same-sex couple who even approached CSS.” Moreover, CSS points to Philadelphia’s many other providers, raising the question of whether their religious exercise prevents any same-sex couples from fostering. Amicus briefs by Children’s Rights et. al say that a win for CSS would “harm LGBTQ youth in foster care by sending a message that LGBTQ people are considered unsuitable to provide loving homes, … [a message that] trickles down to LGBTQ youth and perpetuates a cycle of stigmatic harm.”

CSS sued the City, framing the question as one of exclusion of religious agencies from the public square, being “bar[red] from society.” CSS maintains the City violated their First Amendment rights. The lower federal courts have ruled against CSS.

Borrowing the playbook of the gay rights movement, religious stakeholders have become exceedingly good at narrating their own stories of harm. They say that if they do not prevail at the Supreme Court, then children will lose: “Many of Catholic’s homes sit empty right now, even though Philadelphia is in the midst of a well-documented shortage of foster families.”

Just as the religious liberty protections in state same-sex marriage laws (353-356) were commonsensical accommodations of plural interests, we have the ability to make everyone well. There’s no reason for agencies to close. There’s no reason for couples to be turned away. A lot of these “zero-sum” outcomes flow from an antiquated funding system that has favored large monopolists and created a dearth of smaller providers. Anytime you have a limited number of providers, you have choke points, so mission one must be to grow the number of providers, as explained below.

Missing in the sterile claims made in Fulton about who has been wronged—the  state (its “managerial authority”) or the agency—is what it means for children when prospective parents are turned away.  Reading the briefs, one would think a disappointed couple simply flips to the next agency in their rolodex.

As an adopted child who was fostered, this just does not ring true. I cannot imagine the kind of hurt that my mother and father would have experienced if they had been turned away when they showed up to adopt my sister and me. If an agency had said to my parents, “Mr. and Mrs. Fretwell, you are not the perfect family”—for any reason, whether because my father had little formal education or my parents were of modest means—my father would have said “Alice, we’re out of here.” And that would have been the end of the Fretwell family, meaning a home for my sister and me.

Neither can I imagine a world in which religious placement agencies do not operate.  They fill an important niche—they draw forward families from their communities, they encourage adoption and foster care in terms that resonate with the families considering the hard job of becoming parents.

This particular culture war fight does not implicate only those agencies that might decline to serve LGBT couples, it spills over to agencies that have declined to place children with Catholics, with Jews, and with anyone else who does not share their vision of Jesus. Miracle Hill, a foster care placement agency in South Carolina, received a waiver from the U.S. Department of Health and Human Services, permitting it to turn away families “who don’t meet their standards, [although] they refer them to agencies that will, … [which may be] several hours away by car.” This waiver was given notwithstanding federal protections against religious discrimination.

After hearings by the Worker and Family Support Subcommittee of the House Ways and Means Committee, Subcommittee Chairman Danny K. Davis of Illinois and then-Chairman of the Subcommittee on Oversight, the late John Lewis of Georgia, issued a joint report.  The report faulted HHS for “sanctioned discrimination” (12). “Despite the sweeping impact the waiver would have on children in foster care, political appointees at [HHS’ Office of Civil Rights]—not the career civil servants at [HHS’s ACF Children’s Bureau] who are experts on child welfare—drove the waiver decision” (21). Reps. Lewis and Davis fear that these kinds of waivers “will exacerbate the current shortage of foster parents and the current increase in youth entering and remaining in care, leaving our most vulnerable children without stable homes.” Clearly, culture war fights are playing out not only in the courts but inside of administrative agencies.

It is tragic when couples are turned away and it is tragic when agencies risk closure, which happened to Catholic Charities of Boston more than a decade and a half ago (279).

We need policies that keep all hands on deck. Every loving couple that can care for children should be able to receive help without being humiliated. Every agency that helps make this happen for families, including faith-based agencies, should be able to do the important work they do for children.

We have a model for having it both ways that has worked through five different Presidential administrations:  the Child Care and Development Block Grant Program. This program helps lower-income families afford childcare for their children.  Families receive a certificate that they can use at a “broad range of child care providers” that best fits their needs and the needs of their child, whether that provider is a Montessori school, a Lutheran day school, the child’s grandmother, or any other provider.

Families hoping to foster and adopt do not  have a wealth of providers now because of our antiquated foster care funding system. The state picks winners and losers—that is, which agencies are permitted to serve families—and government funding follows the child, rather than the family. Complicating matters, this structure of paying for services after a child is placed in a family has favored large agencies that can bear risk, not smaller groups that could do one part of the needed work, like the home study or training of families. 

In the antiquated model, the child is the beneficiary. But families are the ones that make the selfless decisions to adopt or foster—they should be given the resources to select and self-direct to the agency that best serves their needs, much as we do with early childhood development.

A certificate model distributes the basket of placement-related work across a larger number of providers. This would give families greater choice when seeking the right agency for themselves. It would ease the “chokepoint” that has made it difficult for LGBT couples and others to take children into their care.

Couples would be spared the humiliation of being rejected by agencies picked by and paid for by the state. Instead, families ready to foster or adopt would be the one to choose the agency that works best for them, religious or secular.  At the same time, faith-based agencies would remain in the marketplace recruiting and training families in the faith community to adopt and foster children.

In this model, the state has to do more work: providing families information about the available set of providers and growing the ranks of providers. And the state has to pay attention to catchment area and geographic challenges. But fundamentally reforming how we pay for these services will go a long way to opening the marketplace to a greater set of providers willing to serve everybody.

True, there is a slim chance that some families self-direct to an agency that declines to serve them. But even this possibility can be eliminated with thoughtful legislation. Religious placement agencies can be asked to be part of a consortium of providers that includes agencies willing to serve every demographic. Under this approach, the consortium takes all comers. No one is ever turned away.

U.S. Representative Chris Stewart has proposed a fix that would keep all hands on deck; it is chock-full of referral duties and devices to place prospective adopters in the driver’s seat, ensuring that they are treated with dignity and agencies stay open. Under Representative Stewart’s approach, parental choices determine which private agencies provide placement services for the family and therefore which are paid. As Bill Eskridge said this week at CATO, “legislators, when they sit down and actually work out these issues, do a better job than judges do.”

As a middle way, there may be no takers for Representative Stewart’s approach. As with marriage equality itself, there is tremendous allure in pursuing a complete win at the Supreme Court. Whatever decision the Court reaches in Fulton, however, it is likely that some children will lose.

It is time to rethink how we have structured foster care and adoption placement services. This conflict is not the place to work out whether we must respect each other as persons with inherent worth.

Marriage Equality is a stunning accomplishment as a book, much as same-sex marriage has been as a movement. If there is one lesson in these pages, it is that we must find common ground. We have lived too long as an America divided, it is time to be one America again.

Robin Fretwell Wilson is Mildred Van Voorhis Jones Chair in Law, University of Illinois College of Law, and Director, Institute of Government and Public Affairs, University of Illinois System. You can reach her by e-mail at wils@uillinois.edu