New York State Bar Association Files Amicus Brief With U.S. Supreme Court To Protect LGBTQ Rights And Foster Children

By Christian Nolan

August 20, 2020

New York State Bar Association Files Amicus Brief With U.S. Supreme Court To Protect LGBTQ Rights And Foster Children


By Christian Nolan

The New York State Bar Association (NYSBA) today filed an amicus curiae brief with the U.S. Supreme Court to protect LGBTQ rights in a case that could potentially upend the lives of thousands of foster children across the country.

“The State Bar Association has a long history of promoting equality in the law for LGBTQ people in all aspects of society,” said NYSBA President Scott M. Karson (Lamb & Barnosky). “A married same-sex couple is a legally recognized family and NYSBA will continue to advocate to protect their rights.”

In Fulton v. City of Philadelphia, a foster mother is suing the city for terminating its foster care contracts with the city’s Catholic Social Services agency, which will not place foster children with married same-sex couples in violation of the city’s non-discrimination statutes. The city claims that Catholic Social Services has no right to a taxpayer-funded contract to perform a government service when it is unwilling to comply with the city’s requirement to accept all qualified families free from prohibited types of discrimination.

Meanwhile, Sharonell Fulton, the foster mother, and Catholic Social Services argue that the city government is bullying them to take actions inconsistent with their faith, and in doing so is violating the First Amendment’s Free Exercise Clause.

“The Free Exercise Clause of the First Amendment provides critical protections to our faith-based institutions but it does not give them a license to discriminate when participating in generally available government contracts that require non-discrimination protections,” said Christopher Riano (Columbia University), chair of NYSBA’s LGBTQ People and the Law Committee. “LGBTQ couples represent a critical mass of foster parents, and antidiscrimination ordinances like the one in Philadelphia ensure that all qualified families can foster children.”

Riano pointed out that with regard to the Free Exercise Clause, the Supreme Court ruled in 1990 in Employment Division v. Smith that if prohibiting the exercise of religion is not the object of the law but merely the incidental effect, then the First Amendment has not been offended.

NYSBA argued in its amicus brief for the importance of precedent as a balancing tool in constitutional matters and urged the Court to retain the delicate equilibrium crafted within Smith. Furthermore, the brief details the significant and serious impact this case could have on foster children and families in New York and across the nation.

For instance, in New York there are 66 private foster care placement agencies working in conjunction with local social services departments that serve all 15,820 of New York’s foster children. Eighteen of these agencies are religious-affiliated and some counties – Jefferson, Saratoga, and Montgomery – only contract with religious-affiliated agencies. Thus, the Court’s ruling could result in an increased potential for discrimination against couples due to their race, sexual orientation, or any number of protected categories and fewer families available to provide homes for foster children, NYSBA argued in its brief.

“A decision in Fulton’s favor would have a disastrous impact on America’s already struggling foster care system,” Riano said.

NYSBA’s LGBTQ People and the Law Committee and the Children and the Law Committee spearheaded this effort and would like to acknowledge Joseph R. Williams (Copps DiPaola Silverman); John P. Drohan III (Drohan Lee); Ryan Thoreson of Yale Law School, and Sam Buchbauer for their hard work on the amicus brief.

Click here to read NYSBA’s full amicus brief.


Contact: Susan DeSantis
[email protected]

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