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This article is written by Priya Chaudhary


In a landmark ruling on 17th June 2021, the US Supreme Court observed that Philadelphia had violated the free exercise and free speech clause enshrined in the First Amendment when it refused to contract with a Catholic foster care agency that refused to place children with same-sex couples owing to its religious beliefs regarding the institution of marriage. 

In Fulton v. Philadelphia, the court had to decide a case of a Philadelphia-based foster care agency-Catholic Social Services (hereinafter referred to as ‘CSS’). The city of Philadelphia stopped referring children to the said foster care agency when it discovered that they did not certify same-sex couples to become foster parents. While claiming that the said policy of the agency violated the non-discrimination clause of the agency’s contract with the City and the on-discrimination requirements of the city’s Fair Practices Ordinance, the city of Philadelphia stated that CSS holds a religious belief that marriage is a sacramental bond between a man and a woman. 

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Since CSS believes that certification of prospective foster families is an endorsement of their relationships, it does not certify unmarried couples, regardless of their sexual orientation, or same-sex married couples; which was the issue in the present case. At the same time, CSS has never objected to certifying gay or lesbian individuals as single foster parents or to placing gay and lesbian children under foster care. The arbitrary postulation surfaced through a newspaper report in 2018.

The court also quoted another judgment of the US Supreme Court- Employment Div., Dept. of Human Resources of Ore. v. Smith (494 U. S. 872.) while iterating that-

“Laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are both neutral and generally applicable. This case falls outside Smith because the City has burdened CSS’s religious exercise through policies that do not satisfy the threshold requirement of being neutral and generally applicable.”

Philadelphia’s foster care system and the onset of the current altercation

The Philadelphia foster care system is structured on close coordination between the City and private foster agencies like CSS. Children who are found to be unfit to stay at their homes are taken into custody by the City’s Department of Human Services. The Department enters into standard annual contracts with private foster agencies to place some children in foster care. 

The placement process commences with the review of prospective foster families by these agencies as authorised by Pennsylvania law.The Department delegates its authority under Article IX of the Public Welfare Code to inspect and approve foster families to an approved FFCA.

Before certifying a family, an agency has to carry out a home study wherein it considers statutory criteria as enshrined under section 3700.64 of the Pennsylvania Code, including-

  • The family’s “ability to provide care, nurturing and supervision to children,” 
  • “Existing family relationships,” and;
  • The ability “to work in partnership” with a foster agency.

Based on this study, the decision of approving, disapproving or provisionally approving the family for foster care has been left solely to the discretion of the foster care agency with no review whatsoever. 

If the foster agency holds staunch religious beliefs while refusing to align with the changing social fabric, many prospective same-sex couples who could become great foster parents shall be deprived of their rights protected under the Ordinance.

Before placement, the Department of Human Services sends a referral to its contracted agencies post which agencies report whether any of their certified families are available and willing to foster a child. The child is then placed with what the Department considers the most suitable family.

To date, no same-sex couple has sought a certification from the CSS to become foster parents and if it did, the CSS would direct them to an agency that certifies same-sex couples. This carried on for around 50 years until 2018 wherein a newspaper report drew up severe criticism, leading the City Council to call for an investigation into the alleged discrimination occurring under the “guise of religious freedom.”

Soon after, the Philadelphia Commission on Human Relations launched an inquiry followed by a meeting between the Commissioner of the Department of Human Services and CSS. After the meeting, the CSS was prevented from referring children to the agency that was justified by the city and it refused to revoke this measure unless the CSS agreed to certify same-sex couples. 

CSS, on the other hand, alleged that the referral freeze violated its rights under the Free Exercise and Free Speech Clauses of the First Amendment. The District Court denied the relief of temporary injunction as prayed by the CSS by holding that the contractual nondiscrimination requirement and the Fair Practices Ordinance were neutral and generally applicable (which is also the moot question in this case) and thus the free exercise claim was unlikely to succeed. 

The proceedings

The Fair Ordinance applies to public accommodations and considers denying or interfering with the public accommodations opportunities of an individual or otherwise discriminating based on his or her sexual orientation as unlawful. But since foster care is not a public accommodation, it was observed that the ordinance did not apply to the CSS. 

General applicability requirement

US laws provide that a law burdening religion will not be subject to legal scrutiny unless it is neutral and is generally applicable. A legal provision is said to lack general applicability if it prohibits religious conduct while allowing secular conduct to undermine the government’s asserted interests similarly.

Applying the compelling interest test in Sherbert and Wisconsin v. Yoder(406 U. S. 205 (1972), it were observed that the underlying question, in this case, was not whether the City had a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.

The appellants cited the case of Church of Lukumi Babalu Aye, Inc. v. Hialeah(508 U.S. 520 (1993) ), wherein the City of Hialeah enacted many ordinances prohibiting animal sacrifices (a religious practice of the Santeria faith). Apparently, this was done to protect public health, expressing concern over the disposal of carcasses in open public places. The ordinance was, however, severely criticised on the grounds of being biased for not regulating the improper disposal of garbage by restaurants or hunter kills, both of which manifested a similar hazard. 

The Court concluded that this underinclusiveness made the ordinances specifically and not generally applicable. Similarly, the city’s claim that CSS’s practice violated section 3.21 of their standard foster care contract, which emulates the rejection of a referral if the provider rejects a family owing to the sexual orientation of the parents, was held not to be generally applicable. 

It was finally held that though the society has evolved to a stage where gay couples have been granted social and legal rights including the right to live with dignity. However, considering the facts of the case, the interest of the state to preserve the social fabric cannot justify denying CSS to exercise its religious beliefs. 

The fact that why the city had a particular interest in denying an exception to CSS while making them available to other foster agencies did not seem warranted. Since CSS sought to work in a manner consistent with its religious beliefs without imposing its beliefs on anyone, it was held that its rights under the Free Exercise Clause were violated.

Examining the judgment in the light of Indian laws

Foster care is an evolving concept in India. While the Adoption Regulations of 2017 have structured pre-adoption foster care, independent foster care or the possibility of same-sex foster/adoptive parents still seems a far-fetched reality. 

Section 5 of the regulations lays down the following-

“No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship.”

Section 11 of the regulations provide for pre-adoption foster care by prospective adoptive parents. This implies that in order to be eligible for extending foster care, prospective parents need to qualify for the mandatory and statutory requirement of a marital relationship.

In a religious country like ours where religious texts have been quite open regarding homosexuality and gay marriages, the taboo surrounding same-sex couples and the fact of them being perceived as “different” seems incomprehensible. It has been a major reason why consensual relations between same-sex couples was decriminalised after 71 years of independence. However, same-sex marriages or foster care by same-sex couples are still not legal in India. 

If the Fulton case is held as a precedent in India, stressing the existence of a marital relationship for couples as a primary qualification for pre-adoption foster care owing to the religious taboo that still pervades our community is a worrisome situation and needs to be checked.

Hon’ble Supreme Court had observed in K.V. Muthu v. Angamuthu Ammal that bringing up a child need not always be “parental”. If a child was brought up by foster parents with the love and care that one usually receives from one’s family, he would very much be a member of that family.

While the Indian Judiciary is finally embracing LGBTQ+ rights, it’s high time that our laws break free the societal notions surrounding foster care and reflect the progressive nature of the society through relevant changes.


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