Fostering free exercise.

• Author: Ganahl, Joseph R.
• Position: Nondiscrimination against religious child placement agencies

INTRODUCTION

Each child is "endowed by [its] Creator with certain unalienable Rights," (1) and through the natural course of generation, with a mother and father who are the presumptive guardians, not only of the child, but of the child's rights. The law shows great reverence for the parent-child relationship, and the State usually is very reluctant to interfere with it. (2) The task of the State in supervising the care of children whose own parents are unable to care for them is a very weighty one. When it becomes necessary for the State to act to protect the child because of parental incapacity, neglect, disinterest, or abuse, the optimal resolution is to work with the natural parents to solve whatever problems have led to the State intervention and to reunite the family, which is happily what occurs at least half of the time. (3)

While the State assumes the role of the parent, it is bound, both morally and legally, to respect the rights that still reside with the legal parents (4) and to safeguard the child's rights as well. Among these are the mutual rights of the parent to direct the child's religious formation and of the child to exercise her religious beliefs, which are closely intertwined. In order to protect these rights, children are often matched with religious foster agencies and families adhering to the same faith as the child. The question arises: what if there is a conflict between the teachings of a religious group and the public policy of the State?

A handful of states have terminated contracts or licenses of religious foster care agencies that refuse, based on their religious and moral convictions, to place children in same-sex or unmarried cohabitant households. These states defend their actions by pointing to a policy of prohibiting discrimination on the basis of sexual orientation or marital status. Applying such a policy in the context of foster care, however, can undermine the interest that children and their parents have in obtaining access to foster care providers that will embrace a child's faith and will reinforce the moral and religious formation that parents have begun to impart to their child. Any social benefits the State is seeking to obtain by the elimination of certain religious foster care providers is far outweighed by the costs to parents and children whose interest in religious matching is undermined. This Note argues that states should contract with a broad range of foster agencies, both religious and secular, and should not discriminate against agencies that utilize religious criteria in placing children with foster care families.

Part I of this Note examines the primary legal arguments that states have used to justify ending cooperation with certain religious foster care providers. As explained in Part II, the actions these states have taken are problematic in light of state religious matching statutes which encourage the placement of a child with a foster provider adhering to the same beliefs as the child or her parents. These religious matching statutes' constitutionality has been upheld against Establishment Clause challenges. Further, the policy implicit in them is buttressed by an independent "reasonable efforts" standard articulated in several cases which deal with the free exercise rights of children in the custody of the State and of the parents of those children.

Part III of this Note examines the how the First Amendment rights of parents and children may be burdened by states' refusal to contract with religious foster care agencies and whether such a policy is constitutionally permissible. Finally, Part IV offers a model statute that would make explicit and more easily enforceable the First Amendment assumptions that are implicit in religious matching statutes.

1. TERMINATING CONTRACTS WITH RELIGIOUS AGENCIES

   1. Broad Outlines of the Controversy

      There has been increasing controversy over religious social service agencies being forced to close because they decline to place children with same-sex or unmarried cohabiting couples. (5) The agencies' objection to such placements arises from their conviction--often influenced by religious belief--that the best interests of children are not served by such placements. (6) Much of the focus has been on the refusal to place children with same-sex couples, but in reality the refusals are rooted in the deeply held belief of a broad range of persons that placing a child with either a same-sex couple or an unmarried cohabiting couple, whether for foster care or adoption, can be harmful to the child's moral and spiritual development. (7)

      After changes in marriage law to include same-sex couples in a number of jurisdictions--notably Massachusetts, California, (8) and the District of Columbia--religious providers' state contracts or licenses were terminated based on agencies' unwillingness to place children with same-sex couples. (9) Even in Illinois, which extends marriage-like domestic partnership benefits to same-sex couples but does not recognize same-sex unions as equivalent to marriage, agencies were told by the Department of Children and Family Services (DCFS) that they will not be offered contracts it they do not agree to place children in domestic partner households, whether same-sex or opposite-sex. (10)

      Four agencies run by Catholic Charities in Illinois sued to prevent the State from terminating their contractual relationship, which had been ongoing for approximately forty years. (11) Ina crucial judgment which virtually ended the litigation, the judge's terse property-law analysis sidestepped the complex arguments briefed by the two sides in the case. (12) After the State expedited the process of transferring the care of children from Catholic Charities to other agencies, Catholic Charities dropped its appeal to the circuit court's grant of summary judgment because it would be unable to maintain its facilities or pay its employees pending the outcome of the suit once the contract funding was terminated. (13) As the arguments briefed in Catholic Charities' case are typical of those in other cases where contracts have been denied or refused, they are examined in some detail below.

   2. The Catholic Charities Case

      The primary thrust of Catholic Charities' argument was that the State had explicitly denied renewal of its contract on illegal grounds, even after both parties had agreed to the terms of the new contract. (14) The State contended that it was concerned with the harm that flowed to foster children and foster parents from the agencies' policies. (15) Several claims supported each side's contentions.

      Catholic Charities main arguments in support of its position were that (1) it was exempt as a sectarian agency from the Illinois Human Rights Act, (16) which bars only "non-sectarian" adoption agencies from discriminating on the basis of marital status and sexual orientation; (17) (2) even if the Human Rights Act could be construed to extend to sectarian agencies, the Illinois Religious Freedom Restoration Act (18) would bar that interpretation as an impermissible burden on religion in the absence of a compelling governmental interest; (19) (3) the newly passed "Religious Freedom Protection and Civil Union Act" (20) did not implicate Catholic Charities inter alia because of a provision that states: "Nothing in this Act shall interfere with or regulate the religious practice of any religious body." (21)

      The State attacked the first argument by arguing that Catholic Charities was a state actor and could not raise religious defenses that a private agency could raise under the Human Rights Act. (22) In response to the second argument, the State claimed that the agency's free exercise rights were not substantially burdened because it was not seeking a generally available government benefit, but the privilege of providing services under a government contract. (23) They argued further that the State has a compelling interest in making contracting agencies abide by its rules barring agencies from refusing to accept unmarried couples as potential foster parents. (24)

      The State first attempted to show a compelling interest by referring to decisions from other jurisdictions that have held that the state has a strong interest in protecting the health and safety of children. (25) Contending that a directive requiring children to be placed without consideration of marital status was in the children's best interests and equivalent to a safety regulation, (26) the State argued that religious agencies' request for exemption from such rules by asking for a referral system meant they were seeking "to operate in a way that violates the children's best interests." (27)

      The State also alleged a compelling interest by pointing out that the State has an independent interest in eliminating discrimination "[e]ven absent the protection of the Civil Union Act...." (28) The State claimed that allowing a religious agency to maintain a policy in line with its values would "erode public confidence in the state's neutrality," (29) and that the only remedy to such discrimination was to forbid it completely. (30) Lastly the State argued that Catholic Charities policy stigmatized practicing homosexuals and sent the wrong message to children, two harms the State has a compelling interest in preventing. (31)

      There was no response to the plaintiffs' third argument regarding the interpretation of the Religious Freedom Protection and Civil Union Act, other than to implicitly assume that DCFS was interpreting it correctly. (32) In sum, the State's primary arguments were that (1) religious agencies that contract with the State are state actors and therefore barred from acting in ways not allowed to the State; (2) providing services such as foster care is not a generally available benefit, and the State may contract with whomever it deems best; (3) religious agencies' consideration of marital status in selecting foster parents is invidious...