About 20,000 children age out of the foster care system every year without a permanent family or home, forcing youth into instability and even homelessness. Many adults want to open their homes and hearts, but a state’s contracts may inadvertently stand in the way.
This reality was brought into stark focus last month when Michigan felt impelled to settle a lawsuit brought by a local foster care agency. Unfortunately, the settlement allows taxpayer-funded agencies to refuse to work with same-sex couples seeking to foster or adopt a child.
The settlement came about due to the presence of a discretionary exemption in Michigan’s child welfare contacts. Whatever benefits these exemptions have, they are now outweighed by the risks. It’s time to end them.
Michigan certainly did not intend its child welfare contracts to result in discrimination. In fact, just as the settlement was reached, Michigan child welfare officials recommitted publicly to working closely with LGBTQ+ families, whom they deem critical to their work to place children in loving and appropriate foster care homes, and announced plans to further enhance services and support for prospective same-sex foster parents.
The settlement in Michigan is a cautionary tale for states across the country. They may find themselves on the receiving end of similar lawsuits brought by plaintiffs who claim that the 2021 Supreme Court ruling in Fulton v. City of Philadelphia leaves them no choice but to allow taxpayer-funded discrimination. This is simply not the case.
In Fulton, the Supreme Court issued a narrow decision based on Philadelphia’s contract with Catholic Social Services, which enabled Philadephia’s child welfare director to issue discretionary exemptions to the city’s non-discrimination requirements. The court found that Philadelphia violated the First Amendment’s Free Exercise Clause by not granting an exemption to enable the faith-based group to refuse to do foster care and adoption home studies for same-sex couples.
Michigan’s child welfare contract also contains a clause with a discretionary exemption, but it is specific to the referral of a child for placement with a foster care agency. Once an agency accepts a child for placement, it cannot return that child to the state for reassignment to a different agency without an exemption to do so.
The presence of discretionary exemptions in child welfare contracts has thus opened a back door for taxpayer-funded discrimination to rush in, risking great harm for children in Philadelphia and Michigan — and has the potential to do so in other jurisdictions. Some state officials may think that Fulton entitles them to grant agencies a license to discriminate, while others may feel — as did Michigan’s — that their hands are tied.
Neither assumption is correct. Child welfare officials must act now to avoid the unintended consequences of including discretionary exemption clauses in foster care contracts. We urge states to review and revise their contracts, regulations, policies, and laws to minimize the risk that government-contracted child welfare agencies will be able to claim a right under Fulton to discriminate when providing foster care and adoption services.
The Fulton decision must not be used to enshrine a back-door entrance for taxpayer-funded discrimination. States should draft their child welfare contracts accordingly.