The Missing Equal Protection Argument in Fulton

Nelson Tebbe

Lawrence Sager & Nelson Tebbe

This fall, the Supreme Court will hear arguments in Fulton v. City of Philadelphia. Philadelphia declines to contract with child placement agencies that exclude LGBT foster parents. Catholic Social Services (CSS), an agency that categorically declines to place children with married same-sex couples, claims that the Free Exercise Clause prohibits the city from denying it a contract. Philadelphia prevailed in the Third Circuit.

At present, attention is focused on the religious freedom issue in Fulton. CSS is arguing that the city acted out of antireligious animus and, alternatively, that it deserves a free exercise exemption from the city’s antidiscrimination policy. (Under the current free exercise rule, articulated in Employment Division v. Smith, religious actors cannot win exemptions from general laws, including civil rights protections. CSS is asking the Supreme Court to change that rule by overturning Smith.) Philadelphia, conversely, is expected to argue that its policy is neutral and generally applicable, and that Smithshould remain good law. 

Missing from the Supreme Court briefing so far is an important argument on behalf of the city, namely that it is not only permitted to insist that child placement agencies treat same-sex couples as eligible for foster care on the same terms as others, but that it is required to do so by the Equal Protection Clause. The legal intuition is simple: The government has responsibility for placing children in foster care, and it must exercise that power consistent with the Constitution. Under Obergefell, the city itself could not categorically exclude same-sex couples from consideration as foster parents, and by the same token it cannot allow an agent acting on its behalf to do just that.  

In sum, child protection and ensuring child welfare are core governmental functions. (Although historically private religious organizations cared for vulnerable children, state governments had taken control of child placement by the 1960s.) Only the government can remove a child from the custody of its parents, and the government remains actively responsible for the child’s welfare until a permanent home is found—either the original home or the home of an adoptive parent or guardian—or the child ages out of the state’s oversight. Foster care is an integral part of the exquisitely public function of child protection. A city’s use of private entities to help with foster care placement does not deflect or reshape its responsibility for vulnerable children. 

Applying equal protection law to these facts is relatively straightforward. If the City of Philadelphia ran its own child placement agencies, and refused to certify same-sex married couples as qualified for foster care, the Equal Protection Clause doubtless would be implicated. A strong thread of concern for equal treatment runs through Obergefell and its insistence on equal dignity, and equal protection explicitly grounds the decision, in part. Of course, the Court’s decision in Romer v. Evans is explicitly rooted in equal protection, which also plays an important role in Lawrence v. Texas. Our conclusion is that Philadelphia is required to ensure that its child placement agencies are not categorically excluding same-sex couples, just as it would be required to do if it were doing the placement work in house. Philadelphia is not only allowed to insist that its child placement providers treat married same-sex couple equally, it is constitutionally obliged to do so. 

Elsewhere in the United States, governments have faced similar choices between their obligation to respect the equal dignity of same-sex couples under Obergefell and their respect for the religious freedom claims of contracting placement agencies who refused to certify such couples as foster parents. In three instances at least, governments have continued to contract with placement agencies that discriminate against same-sex couples, couples have sued, and the initial judicial reactions have been sympathetic. In each of these three cases, district courts have held that prospective LGBT foster care parents have standing, and/or have stated a claim, under the Equal Protection Clause. In all three decisions, federal judges have suggested—albeit only trial judges, and only in preliminary orders—that the government is constitutionally accountable when it allows contracting child placement agencies to refuse to match foster children with members of same-sex couples. No court has ruled the other way, to our knowledge. (Just last week, the Second Circuit did rule for a religious agency on a motion to dismiss but without reaching the equal protection issue.)

In those three district court cases, the governments allowed their placement agencies to exclude same-sex couples and they then faced scrutiny from federal courts. By contrast, Philadelphia responded to its constitutional obligations proactively, by insisting that its child placement agencies treat same-sex couples with equal regard. It would be perverse for the Supreme Court to find constitutional fault with Philadelphia’s fidelity to Obergefell. 

We anticipate at least three objections, none of which is persuasive. First, CSS might argue that the city is constitutionally permitted to take a pluralist approach to child placement, using a variety of child placement agencies that offer a variety of approaches. As long as prospective foster parents in same-sex marriages have the ability to participate in the system by using some agencies, on this view, equal protection has not been violated. 

Though this argument has superficial appeal, it does not survive a simple hypothetical. Imagine that Philadelphia did not contract with private agencies, but operated its foster care system directly and exclusively. Imagine further that the city located one placement agency in each neighborhood, just for geographic convenience—prospective parents could use any of the city’s agencies. But, in an effort to foster pluralism and accommodate religious employees, the city allowed some of its neighborhood agencies to exclude same-sex couples. We have little doubt that such an arrangement would be unconstitutional. 

It is useful to pause here and consider why it is so clear that Philadelphia would be constitutionally barred from maintaining a few same-sex-couples-need-not-apply foster care placement offices among its various neighborhood offices. First, same-sex couples would face tangible harm in the form of increased search costs, which can be decisive on the margins. A couple that approached a government office and was turned away might not have the additional time off from work, or the other resources necessary, to pursue the matter further. Forcing them from the pool of prospective foster parents would both injure them and frustrate all the purposes of the government’s program, given the high rates at which same-sex couples raise adopted or foster children. A same-sex couple turned away from a child placement agency would face particularly high hurdles in locations where the agency dominated the placement market.

Moreover, a policy of “pluralism” among neighborhood offices would entail intolerable dignitary and symbolic harms. The city would be creating two classes of citizens: Same-sex couples who had to take care to choose a child placement office where they would be welcome, and everyone else, who would be welcome in all offices. A shadow of disgrace would fall over same-sex couples. And it is all too easy to conjure a scenario in which two partners of the same sex mistakenly find themselves in the wrong office, seated at the wrong desk, being sent away because of the religious beliefs of officials in that office. The situation would be a far cry from one in which equal dignity prevails.

A second objection might be that when officials match children with families, they properly consider characteristics that are constitutionally suspect, such as religion, sex, and marital status. They consider those characteristics as part of their overall determination that a placement is “in the best interest of the child,” which is the relevant legal standard. They may even take into account LGBT status itself. For instance, officials may decide to place a child who identifies as LGBT with a family headed by a same-sex couple, especially where the child has been separated from the family of origin because of conflicts over sexual orientation or gender identity. If those practices are acceptable, as they are commonly thought to be, then governments cannot be constitutionally prohibited from contracting with agencies that deploy the same criteria. Or so runs the objection.

Yet considering LGBT status as part of an all-things-considered, case-by-case judgment about the best placement for a child is entirely different from categorically prohibiting any child from being placed with a same-sex couple. When placement agencies routinely take protected characteristics into account, they do so as part of a comprehensive judgment of what is in the best interests of the child. Although courts and commentators continue to debate how much protected characteristics can matter in determinations about whether a particular placement is best for a particular child, one thing is clear: Categorical exclusions based on a protected characteristic are constitutionally impermissible. Effectively, CSS has determined that those couples are never appropriate for foster children. But that claim flies in the face of the social science evidence marshaled by the Obergefell Court and it can be supported only as an article of faith. CSS’s blanket exclusion of same-sex couples can draw no support from a  practice of taking protected characteristics into account when placing individual children. No government could adopt a comprehensive ban on foster parents based on a protected characteristic—and no government may allow its agents to do the same thing when carrying out a core government function on its behalf.

This brings us to a third and final worry about the equal protection argument in Fulton v. City of Philadelphia: Does it ultimately produce just an intractable conflict among constitutional values? On the one hand, Philadelphia is constitutionally prohibited from allowing CSS to exclude LGBT parents, while on the other hand, the city is constitutionally required to allow CSS to freely exercise its religion, regardless of any antidiscrimination requirements. In our view, the religious freedom arguments in Fulton fail, for reasons independent of our argument here. But let’s assume that CSS has a substantial constitutional claim sounding in religious freedom. Even then, the conflict would likely be resolved in favor of equal protection in this particular context.

Generally, religious actors must obey civil rights laws on the same terms as everyone else, with only narrow exceptions. As the Court put it in Masterpiece Cakeshop, there is a “general rule that [religious] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” To support that rule, the Court invoked Piggy Park, a 1968 case where it had dismissed as “patently frivolous” a free exercise defense to a claim that it had discriminated against African-American customers in violation of the federal public accommodations law. Furthermore, in both Masterpiece and Piggy Park, the equality rules only had the status of statutes, whereas in Fulton the antidiscrimination provision is located in the Constitution. 

The primacy of equality laws is evident in areas other than public accommodations, such as employment, housing, and government service. For example, consider the Kim Davis conflict. (Davis was the county clerk who refused on religious grounds to issue marriage licenses to same sex couples.) The government cannot discriminate in its own official functions, according to the courts that ruled in her case, even though the government may be justified in accommodating individual officials who are religiously motivated, as Kim Davis herself was ultimately accommodated. She was allowed to limit her own involvement in marriage licensing, but only in a manner that was fully consistent with the state’s Obergefell obligation to treat same-sex marriage applicants exactly as it treated all other applicants.

When basic freedoms conflict, democratic societies seek a reflective equilibrium, harmonizing concrete judgments about individual cases that have withstood reflection, together with principles that fairly abstract from those judgments. Here, decisions by courts and other governmental actors decisively support our conclusion that Philadelphia must guarantee equal protection, even as against agencies’ sincere claims sounding in religious freedom. 

Incidentally, our argument survives not only these three substantive objections, but a procedural one as well. Someone might agree with us that there is a significant equal protection issue but worry that it was not raised in the lower courts. Normally, the Supreme Court will not consider points that were not made below. And here, the Third Circuit ruled that the city was permitted to adopt its nondiscrimination policy by religious freedom law, so it did not reach the question of whether the city was also required to do so by equal protection. Nevertheless, the equal protection claim is still available because it was raised by Philadelphia at the trial level and it was addressed by the district court, which said that the city has “an interest in avoiding likely Equal Protection Clause and Establishment Clause claims that would result if it allowed its government contractors to . . . discriminat[e] against same-sex married couples.” The issue was also raised in the city’s appellate briefing and therefore it has not been forfeited.

Though no further justification is necessary, we offer one final thought: The importance of equal protection is built into the commitment to religious freedom. In the United States, religious freedom rests firmly on a principle of pluralist equality. No one, least of all the government, can claim a privileged authority on religious matters. That follows from the equal stature of all persons in the project of collective self-government. It would be ironic, and a betrayal of our most fundamental commitments, if we were to permit religious freedom to undermine our efforts to assure that all persons enjoy equal concern and respect in the eyes of the government. Our society’s insistence that racial minorities, women, religious dissenters, and members of the LGBTQ community be treated as equals is of a piece with the commitment to religious freedom. 

The equal protection argument in Fulton v. City of Philadelphia is not peripheral. It is central to the constitutional issues in the case, and it addresses what is at stake for same-sex foster parents and for LGBT foster children.