JUL 02, 2021
In a highly-anticipated decision issued in mid-June, the Supreme Court of the United States ruled in Fulton v. Philadelphia that the City of Philadelphia violated the constitutional rights of a Catholic-affiliated social service organization when the City stopped working with the agency for foster care and adoption services for children in the government’s care. The decision was very narrow, based solely on the specifics of the Philadelphia’s contracting practice. In short, the City’s system allowed officials broad discretion to grant exemptions from non-discrimination obligations contractors otherwise would have to honor. No exemption was granted to the Catholic-affiliated organization who wanted to take the public funding but not consider LGBTQ+ couples for adoption and foster parenting.
Despite claims from the Thomas More Society, nothing in this decision requires the Illinois Department of Children and Family Services (DCFS) to contract with religiously-affiliated agencies in our state that would deny services to same-sex couples. DCFS contractors in Illinois must all — without exception — provide services in a nondiscriminatory manner. Period. Indeed, we litigated this question in Illinois courts a decade ago after a number of Catholic Charities’ entities claimed they had a constitutional right to get a government contract and then use the public funds to discriminate against same-sex couples because of their religious beliefs. When the outcome of the case was clear, the Catholic Charities’ groups abandoned the litigation and simply re-formed their organizations with different names, and agreed to serve all couples in Illinois.
While it is reassuring that the Court’s recent decision will not affect our state’s commitment to anti-discrimination policies, it would serve all of us well to focus on the needs – and best interests – of children, rather than the religious beliefs of adults. There are approximately 400,000 children in some sort of government care across the United States, children who are best served by being in a safe and loving home. We send a terrible message to LGBTQ young people when the agency authorities concerned with their care refuse to work with LGBTQ+ couples. Moreover, the sexual orientation of foster or adoptive parents has no bearing on the quality of care provided for a child.
This is not opinion. It is science.
Based on extensive studies, the American Academy of Pediatrics, the American Psychological Association and the Child Welfare League of America all have issued policy statements that same-sex couples are just as capable of providing safe and loving homes as heterosexual couples. In other words, children who already have been abused or neglected are harmed anew when highly-qualified prospective parents are excluded from serving as adoptive or foster parents solely because of their sexual orientation.
And, after all, the entire point of the child welfare system is serving the children.
The possible harm to LGBTQ children of being told that LGBTQ people should not be parents is part of a larger problem here in Illinois: the discrimination these children experience in many other ways. Recently, Illinois’ Auditor General made clear that DCFS and many of the providers with whom they contract are failing to provide adequate support and services to LGBTQ children in their care. As someone who regularly speaks to these children in Illinois, this harm is quite real. Some children face placement in a home or facility where adults and staff do not recognize their authentic selves, suggest that they are “wrong” or even “sinful.”
Even worse, the Auditor General found that DCFS fails to provide adequate services and access to appropriate medical care for many of these young people. When an advocate — like the ACLU — hears about a critical problem from a young person, DCFS cobbles together a one-off “solution,” a solution that fails to address the wider systemic failures in serving LGBTQ youth. Illinois’ next step must be to grapple with and address wider systemic failures in serving children.
In the days since the Court announced their ruling in the Philadelphia case, some have suggested that child welfare in Illinois would be improved by religiously-affiliated groups being able to advance their values. This is simply untrue. Catholic affiliated care providers in Illinois, like Maryville Academy, did harm to children despite that affiliation.
We can serve the children in the care of DCFS and uphold our state commitment to fairness and inclusion for LGBTQ people from Waukegan to Carbondale. We should continue that movement here in Illinois — because it is good for all of us, especially our children.
Ghirlandi Guidetti is a Staff Attorney at the ACLU of Illinois in the LGBTQ & HIV Project. He has advocated for several years to ensure that LGBTQ+ youth in the custody of the Illinois Department of Children and Family Services are provided necessary and appropriate care and services.
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