Discrimination Is Never in Kids’ Best Interest

If the Supreme Court lets foster agencies reject same-sex couples, children will pay the price.

A family of two men and two children walking in the woods with a stroller.
Photo illustration by Slate. Photo by Monkeybusinessimages/iStock/Getty Images Plus.

This post is part of Outward, Slate’s home for coverage of LGBTQ life, thought, and culture. Read more here.

The Supreme Court has me thinking of some patients of mine.

Last month, the court agreed to hear Fulton v. Philadelphia, and it will hear the case this fall. Fulton centers on Philadelphia’s refusal to let Catholic Social Services screen and certify potential foster parents because the agency will not work with same-sex couples. A local ordinance bars agencies from discriminating against LGBTQ people, so the city declined to renew its contract with Catholic Social Services. The agency sued, and although lower courts found no constitutional violation, the Supreme Court took the case—an ominous sign for Philadelphia.

The broad implications of the case, should the conservative majority side with Catholic Social Services, could be disastrous for anti-discrimination laws writ large. But I can’t help but think about what it would mean for foster kids themselves.

It made me think about Marcie and Brenda.

Marcie and Brenda are a married couple who have been bringing their kids to my practice for long enough that I can’t even remember the first time I met them. (Their names have been changed to protect their children’s privacy.) It’s been my privilege to provide care for their children. Some are biologically related to them, some are theirs through adoption, and many have been children they’ve fostered.

“We have been fostering together for seven years,” they told me in an email. “We’ve had eight long-term placements, eleven children total (three placements were sibling sets of two).”

That’s 11 children in need of a safe, stable, and loving home, and who found one. Eleven children who got care and affection when they needed it most. But there’s more that Brenda and Marcie give children placed with them than is conveyed by that figure alone.

“We specialize in young children with special needs,” they told me. “We have fostered children with various issues, including fetal alcohol syndrome, tracheomalacia, reactive attachment disorder, spina bifida, limb difference, prematurity, neonatal abstinence syndrome, and various developmental delays.”

Over the years I’ve been their children’s pediatrician, I have come to know something about their family. Whenever I learn that another child has come to live with them, I know that child is going to receive the best care possible. I’ve seen it myself on numerous occasions when I’ve delivered medical care to one of their children. If a child has needed close monitoring for some kind of illness, they attend to them vigilantly and show up reliably no matter how many follow-up visits are needed. When any kind of additional treatment or support is necessary, they pursue it diligently. They are also a fun, cheerful family to be around, and it makes me happy when I see one of their kids on my schedule for the day.

No matter how complex or intensive the needs a child placed with them may have, Marcie and Brenda will do everything they can to meet them. I know that child is in wonderful hands. That’s the kind of parents they are.

“We knew there were children who were being placed in nursing homes and residential settings because of a lack of available, skilled foster families,” they told me. “We believe deeply that all children deserve the opportunity to wait for permanency in loving families. Children who are not given the opportunity to live within safe families during their earliest years often have attachment problems for the rest of their lives. Children with special medical/developmental needs are at an increased risk of these attachment issues. We knew we had the ability to love children completely, while also holding space for their ‘forever family’ [adoptive or biological].”

To place a barrier between kids like those and a loving family opening its doors to them feels criminal to me. If I were to employ the same kind of religious language that is used to deprive same-sex families of the chance to be foster parents, I’d call it a sin.

Catholic Social Services opposes same-sex marriage. So does at least one other foster care agency in Philadelphia, Bethany Christian Services. But Bethany Christian Services still certifies same-sex couples, because it does not let its religious beliefs get in the way of the best interest of the child. Catholic Social Services, by contrast, believes it is not in children’s best interest to place them with loving same-sex parents. Marcie and Brenda’s family refutes that belief.

“We fostered a sibling set of girls a few years ago who were five and seven years old,” they told me. “They had multiple placements before coming to our home, and we were committed to being their last stop before their adoptive placement.

“After ten months, an adoptive family was identified and we began the transition process,” they continued. “Part of the transition process was helping the adoptive family understand the girls’ behavioral and attachments special needs. The couple listened intently but didn’t seem to understand the girls’ significant mental health needs. A month into the transition, the mother [of the male/female couple] said in a therapy session we attended together that the girls would do significantly better once they were in a ‘real’ family, with a Mom and a Dad. They shared this belief with many of the girls’ helping professionals over the next few weeks.”

Needless to say, providing these children with opposite-sex parents did not actually help their mental health. “The girls transitioned to them one month later,” Marcie and Brenda told me, “and the adoption disrupted after 18 days.”

Clearly, the presence of heterosexual parents is not some kind of cure-all. Whether they’re gay or straight, some couples will be better parenting fits than others, and it’s not sound to generalize too much from a single example. But there is nothing innately superior to opposite-sex couples when it comes to raising children, as organizations like the American Academy of Pediatrics have been saying for years.

If anything, there is a greater willingness on the part of LGBTQ parents to open their homes to children in need. According to Family Equality Council, same-sex couples are six times more likely to foster children than opposite-sex couples. The Williams Institute at UCLA School of Law reports that 2.9 percent of same-sex couples were fostering children in 2016, as compared with 0.4 percent of opposite-sex couples.

I am in favor of any agency that brings these children into loving, safe homes. I harbor no animus toward agencies with a religious affiliation. Two of the children my husband and I adopted were placed with us by an agency with such an affiliation. But no couple’s chances of having a child placed with them should depend on an agency having a tolerant worldview. If one is going to engage in the work of placing children with foster homes, then nothing should take priority over finding them a place where they will be safe and cared for. Applying some kind of doctrinal test of fitness on the basis of an arbitrary trait like sexual orientation will only keep kids from homes waiting to welcome them.

As Frank Cervone, a lawyer and executive director of Support Center for Child Advocates in Pennsylvania, told a federal court, “the religious criteria that CSS seeks to use to exclude qualified prospective foster parents have nothing to do with the best interests of the children whom we serve together.

“As a result,” Cervone continued, “CSS’s policy of rejecting qualified prospective foster parents or refusing to place children in loving homes with qualified same-sex foster parents based on religious considerations may result in harm to children.”

The idea of Brenda and Marcie’s foster children being denied their loving care breaks my heart. Catholic Social Services is free to believe that same-sex marriages are wrong and illegitimate. But Philadelphia has a responsibility to value the best interest of the child above all else. And that’s exactly what the city did when it refused to work with an agency that would keep kids out of homes like Brenda and Marcie’s. I can only hope the Supreme Court sees that Philadelphia is not engaging in religious discrimination—it’s ensuring that children are not denied a loving home because their foster parents happen to be gay.