Brief of Amici Curiae Scholars of the Constitutional Rights and Interests of Children in Support of Respondents

Abstract

This Brief of Amici Curiae Scholars of the Constitutional Rights and Interests of Children in Support of Respondents filed in Fulton v. City of Philadelphia makes two points. First, a categorical exemption, based on religious beliefs rather than foster children’s needs, does not serve the best interests of children and violates the government’s duty to foster youth. Such an exemption needlessly restricts the pool of prospective foster parents, increasing the risk of a greater number of children being confined to long-term, institutional care. The reduction of same-sex foster parents would also have a disproportionate impact on “special needs” and LGBT children in foster care.

Second, allowing a government contractor to exclude same-sex foster parents gives legal effect to private beliefs in the provision of public foster care services in contravention of the aims of the Fourteenth Amendment. The requested exemption would endorse unconstitutionally impermissible forms of discrimination on the basis of gender stereotyping, sex, and sexual orientation. The Supreme Court has drawn “upon principles of liberty and equality to define and protect the rights of gays and lesbians,” and their families. The Court should do so in this case to protect same-sex couples and children in foster care.