I’m a Chicago-based foster care attorney and a gay man fostering a child with my husband.
Here’s what SCOTUS got wrong: Last week, the U.S. Supreme Court ruled that the city of Philadelphia must resume offering contracts to a religious organization that discriminates against same-sex couples seeking to adopt foster children.
Essentially, the court authorized discrimination against LGBTQ+ individuals under the false pretext of “freedom to exercise religion.” The court ruled that Catholic Social Services deserves city money despite the organization’s refusal to certify LGBTQ+ couples or families as prospective foster parents due to their beliefs that only a man and a woman can be married.
As a lawyer who fights for foster children and their families and who routinely sees the desperate need for loving, committed partners to bring one of the 500,000 children in our foster care system into their homes, I am appalled. As someone who is fostering a 12-year-old alongside my husband, I’m aghast that the Supreme Court made a decision that will undoubtedly lead to more of the exceptionally vulnerable kids in foster care going without stable, loving homes such as the one that my husband and I have created.
The First Amendment does not allow discrimination in the public sector on the basis of religious beliefs — until now, at least. The basis of the city’s refusal to send cases to CSS and the appellate court’s affirmation of their decision was that it violates the nondiscrimination provision and requirements that the city enacted. The Supreme Court, however, says that CSS has the right to have contracts with the city even though it discriminates against LGBTQ+ individuals.
Essentially, Philadelphia has been forced to endorse and legitimize discrimination based on religious beliefs. This is not only morally revolting, but it also flies in the face of precedent.
There has been a storied history of cases where religious organizations tried to use the “religious freedom” excuse to discriminate against African Americans — and it was consistently ruled that those organizations were working in the public realm and therefore had to abide by public laws that prohibit discrimination. This is why the Supreme Court’s decision is legally unsound, disturbing, and disappointing and opens the door to other religious groups using this logic to discriminate.
The hundreds of thousands of children in our foster care system are too often shuffled between temporary placements and group homes, which undoubtedly contributes to their trauma. Nearly 25% of children in foster care develop post-traumatic stress syndrome.
These numbers, as well as statistics about entering the juvenile justice system and slipping into long term poverty, increase for foster children who do not get placed with a family. There are literally thousands of LGBTQ+ families who would open their homes to welcome a child who would otherwise be rejected by other families.
I have dedicated a significant amount of my legal practice to fighting for the rights of foster children — or for their estate after those children have ended up dead in the broken system. I have seen horrific cases of abuse where children’s lives were irreparably damaged by the trauma of group homes or being cycled in and out of very short-term placements.
My work as an attorney helped my husband and me realize that the foster care system needs as many stable, compassionate people as it can get to become foster parents. The 12-year-old boy we’re fostering has brought us much joy, and we have provided him with a loving home and a strong sense of family.
Supporters of this SCOTUS decision may say that there are “other agencies” that would allow LGBTQ+ couples like us to be certified, but what happens in a city or state that only wants to utilize religiously affiliated agencies that discriminate?
At least I can say Illinois has, like Pennsylvania, attempted to prevent such discrimination. In 2011, Gov. Pat Quinn refused to work with Catholic Charities — even though he himself is a Catholic — because the organization refused to allow for LGBTQ+ couples to foster children. The irony here is that the right-wing courts are generally favorable to states’ rights, and yet in this circumstance, they’ve ignored the will of local jurisdictions.
Cities that want to use this discriminatory strategy have been given vast encouragement by the Supreme Court’s decision, and as a result, children will suffer. This decision opens the door to a road filled with discrimination and hardship. It attacks the fabric of our society and the collective heart of who we are as a country.
Jay Paul Deratany is a Chicago attorney, child advocate and writer and producer of the award-winning film, “Foster Boy.”
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