editorial | Fulton v. City of philadelphia
Editor’s Note: A column in the next issue of Community Word will analyze the Supreme Court’s decision against Philadelphia asserting the right of Catholic Social Services to refuse to accept same-sex couples as foster parents.
BY EMILY GILL
By the time this column appears, the Supreme Court will have ruled in Fulton v. City of Philadelphia, deciding whether the city can exclude a Catholic Social Services foster care agency from its foster care system because it will not work with same-sex couples. In most states, adoption agencies must be licensed, which means that they are essentially delegated by the government to provide services that otherwise, by modern expectations, the government itself should provide. Since most adoption agencies receive public funds, it is legitimate for public policies of non-discrimination to apply. Some states have enacted exemptions allowing religious adoption agencies to reject same-sex couples, but only if they do not receive public funding. Fulton may authorize adoption agencies that receive these funds to discriminate against same-sex couples.
Two problems emerge here. The first is the persistence in our society of a traditional understanding of appropriate gender roles, a theme that also ran through opposition to marriage equality before Obergefell v. Hodges (2015). A major factor in the stigmatization of gays and lesbians was their alleged deviation from roles traditionally considered appropriate for individuals of their gender. This underpinned the state’s anti-sodomy laws, rarely enforced but always under threat of a criminal record, before they were deemed unconstitutional. Gay men were described as “effeminate”; lesbians were stereotyped as “butch”. Men have sometimes expressed astonishment upon learning that an attractive woman was a lesbian, which implied that she was certainly attractive enough to appeal to men and should not resort to women.
When marriage equality became an issue, some argued that marriage should be limited to traditional couples, as the presence of male and female parents is essential to provide an optimal environment for children. The presence of adult males and females in children’s lives is healthy, but children do not have to be their parents. Although mixed couples were optimal, the traditional family model has been accompanied by documented cases of neglect, abuse and violence, qualities that are not optimal for raising children. Among Obergefell’s petitioners were two women raising three children, one they initially placed in foster care, one born prematurely and abandoned, and one with special needs. They were to be married if their state of Michigan allowed the two women to be the legal parents of the three children. Some suggest that the relevant question should not be the suitability of same-sex couples as parents, but rather the assumption that the dominant family model is the ideal environment for children.
Second, religious adoption agencies have not been allowed to exclude other types of couples — remarried or interfaith, for example — on religious grounds. Why should they be able to exclude same-sex couples even though they are not receiving public funds? In 2019, Miracle Hill, a federally funded host family provider in South Carolina, received a waiver from the Trump administration, which later became national policy, from the Obama administration’s policy that federally funded agencies must accept all families. The Miracle Hill families, however, must sign a declaration claiming marriage is between a man and a woman and totally denying the existence of transgender people. The aspiring adoptive mother Aimee Maddonna was rejected because she is Catholic and therefore of the “wrong” religion; the agency told him it only worked with evangelical Christians. If the trend represented by Fulton continues, fewer worthy families will receive children, and more children will languish in institutional care.
Emily Gill is Caterpillar Emeritus Professor of Political Science at Bradley University.