Saturday, January 23, 2021
This guest post was written by Professor David Smolin from Samford University’s Cumberland School of Law. Smolin is the Harwell G. Davis Professor of Constitutional Law and Director, Center for Children, Law and Ethics.
Setting the Record Straight: Fulton v. City of Philadelphia
By David Smolin
As an academic who studies adoption, foster care, and children’s rights—and an adoptive parent myself—I am a bit surprised by some of the rhetoric surrounding Fulton v. City of Philadelphia. Understandably, lawyers have to make legal arguments—but often what gets lost are important facts that provide the context necessary to understand and evaluate these legal arguments. This is an important Supreme Court case, but not for the reason that some seem to think. This case will not affect the ability of same-sex couples to foster or adopt anywhere in the Country(same-sex foster care is legal in all 50 states). But it will have an important impact on the number of agencies and foster families available to care for foster children nationwide. Here are the three biggest misconceptions I have seen in how this case is discussed.
#1: Foster care is primarily about the recruitment and certification of foster parents.
Philadelphia has tried to keep the focus on certification, but that’s only one part of a more complex puzzle. Lost in today’s discussion is the fact that foster agencies provide ongoing support for the families that choose to partner with them—and that many families choose a particular agency because its services and support system are different from that of other agencies. Some agencies hire staff with language and cultural competences to better serve Latino communities. Some agencies participate in training programs and certifications to better serve LGBTQ couples, youth, and families. Some agencies recruit through churches and can provide emotional and spiritual support to foster families who want an agency that understands and affirms their deep religious commitments. Fostering in partnership with a private agencies is not “one and done”—it is an ongoing process. Burnout is high for foster parents; it’s an arduous and emotionally-draining undertaking. But families will stick with it longer if they have the training, support, options for respite care, and help they need. Agencies matter. They are not simply identical widgets churning out foster parents. They each play a unique role in a diverse, healthy child welfare system.
#2: Home studies require mere pro forma box-checking.
At oral argument in Fulton, the Supreme Court asked a few questions suggesting a misunderstanding of a foster care home study (the process by which families become certified to care for a foster child in partnership with a specific agency). For example, one Justice asked whether Catholic Social Services could certify foster parents without evaluating their marriage, while another asked whether Catholic Social Services could perform a same-sex home study but include a disclaimer expressing their disapproval of the relationship. I see several problems with this line of thinking.
First, home studies are far more personal, intimate, and invasive than most imagine. Social workers conducting home studies go far beyond inspecting the physical residence. Home studies focus on the relational aspects of a prospective foster or adoptive family, including the marriage or intimate partnership, relationships with children, extended family, community, friends—potentially even aspects of a couple’s sex life. “Sexual orientation cannot be ignored in the assessment process, because an individual’s sexuality is an aspect of who they are as a total person and will impact on their life as a parent.” (https://www.researchgate.net/publication/6301781_Assessing_lesbian_and_gay_prospective_foster_and_adoptive_families_A_focus_on_the_home_study_process)
Because foster children typically come from a background of trauma, a foster or adoptive home must be relationally solid enough to absorb the difficult behaviors common with traumatized children An in-depth evaluation is necessary to ensure that agencies are entrusting vulnerable children only to stable, safe, and emotionally healthy foster families. Anything less than a thorough evaluation could endanger foster children, and could put an agency’s license at risk—when a private agency approves a foster parent, it is “vouching” for that parent’s home, and adverse outcomes call the agency’s abilities and judgment into doubt.
For this same reason, the belief that if the government shuts down a faith-affirming foster agency, all its foster families would simply “transfer” agencies is misguided. There is potential loss and disruption to foster families in losing a trusted partner in their foster care journey and adjusting to a new social worker who doesn’t understand their case or their foster care history. The recognition that their agency has lost its role precisely because it adheres to a faith shared by the foster parents would create a disincentive to continue as a foster parent.
The process of recertification (by which a foster family may, in some cases, partner with a new agency) may also serve as an additional disincentive to continuing, even more so if foster parents fear that the same criteria applied to excluding their former agency will eventually be applied to them as foster parents. Hence, one cannot assume that all existing foster parents would go through this process of transferring and being recertified by a different agency. Losing any qualified foster parents would lead to placement disruptions and would harm the foster children in their care.
Second, asking objecting faith-based agencies to perform home studies for same-sex couples with a “disclaimer” stating that the agency doesn’t endorse the couple’s relationship is a non-starter.As explained in #1 above, when foster parents partner with a foster agency, this results in an ongoing relationship between the agency and the foster parents. Many agencies will regularly check in with their foster parents. It is crucial that this is a relationship of trust and support. Foster parents must feel comfortable talking frankly with their agency, flagging any potential problems, and asking for help when it is (inevitably) needed.
The idea that a couple would want to engage in a partnership with an agency that cannot affirm their marriage defies logic.Philadelphia even seems to understand this, telling prospective foster parents to find an agency that is the “best fit” for them.
#3: Alleged dignitary harms to adults are more important than the best interests of children.
Let me say this first: regardless of the outcome in Fulton, same-sex couples will still be allowed to—and encouraged to—foster and adopt in all 50 states. With that said, an undue focus on dignitary harms for foster parent applicants obscures what is in the best interest of foster children.
Philadelphia and the ACLU argue that the hypothetical referral of a same-sex couple from Catholic Social Services to another nearby foster agency (there are close to 30 private agencies in the City) justifies completely excluding this agency from the foster care system. This means that all foster families whopartner with Catholic Social Services will have to be recertified (see #2) and that Catholic Social Services’ decades of experience and unique ability to recruit foster families from Philadelphia’s Catholic community will be lost.
I see at least two problems with this argument. First, there are adult dignitary harm on both sides. The dignitary harm a same-sex couple might face from potentially being referred to another agency (remember, no same-sex couple had actually approached Catholic Social Services seeking to foster), or which occurs simply from knowing that Catholic Social Services is allowed to continue its historical role, is countered by the dignitary harm women like plaintiff Sharonell Fulton experienced when the city government told her that it was closing down the foster agency with which she has partnered for over 25 years. Knowing your agency was shut down because it shares your faith is also a dignitary harm.
Second, the government is placing these dignitary harms to adults above what is in the best interest of children—namely, to maximize the number of foster parents available to serve children in need. This misses the point of who a foster care program is meant to serve: children in need, not potential foster parents.
On this last point, I have not seen any convincing evidence that excluding faith-based foster care agencies increases the number of homes available for foster children in need. In fact, some evidence indicates that faith-based agencies can recruit families that others can’t and provide wrap-around support services which help foster parents serve longer. Much of this evidence is outlined in several Supreme Court amicus briefs, including my own.
What is more, result-orientated attempts to argue otherwise miss the mark. For example, two professors purport to find, based on “preliminary” analysis of data, and interviews with professionals perhaps selected or self-selected for sympathetic viewpoints,that excluding a faith-based agency in Boston did not have any negative effect on the child welfare system. Their eagerness to come to conclusions based on their admittedly “preliminary” analysis suggests that they began with a preferred conclusion and then went looking for data in support.
For example, as evidence they claim that the number of “days in care” (i.e. the total number of days a foster children spends in a foster home) “slightly decreases” after the agency was shutdown. Even assuming the numbers are accurate, a decrease in the number of “days in care” may be either a positive or a negative child welfare outcome. The number of “days in care”could drop because of a shortage of foster care parents to provide such care, because children are being returned inappropriately to abusive and neglectful homes, or because children “aged out” of foster care. It could also result from unrelated changes in the community, particularly because the result is one of “slightly” decreasing. Simply put, a decrease in “days in care” without more doesn’t tell us much of anything about the health of a child welfare system. No wonder this analysis was presented as “preliminary” by the authors. It is incomplete.
Even if one credited the authors’ conclusions, it is telling that they admit: “None of this is to say that things could not turn out differently in another context where a transition is managed less well.” This is quite an admission in a context where child welfare systems notoriously are not managed well, with the majority of states having experienced a federal court consent decree due to chronic mismanagement. One cannot count on a seamless and well-organized transition in child welfare systems which have been known to literally lose track of the location of children in care, with one study finding more than 60,000 children listed as missing in America’s child welfare system since 2000.
* * *
Looking at Fulton from the perspective of what is best for current and prospective future foster children, it is easy to see why excluding faith-based agencies from the foster care systemsolely because of their religious objections to same-sex marriage is a bad idea. The child welfare systems in the United States arechronically overwhelmed and frequently mismanaged and need all the help available from diverse elements of society, including the religious agencies and persons who have throughout the history of the system provided critically important services and homes for children. In this context of constant crisis for America’s foster care children, valuing the dignitary interests of some (but not all) impacted adults, above the needs of traumatized, abused, abandoned, and vulnerable children, would be a tragically unjust choice.
I would add, as I stated in the Statement of Interest in a Fulton amicus brief, that I support “both the inclusion of LGBTQ persons as foster and adoptive parents, and also … the inclusion of religious agencies and religious adoptive and foster parents, including those whose religious beliefs do not accept same-gender marriage.” America’s children really do need all of us, and the adults have to figure out a way to work together toward that end.
Friday, January 22, 2021
Like many Americans, I'm concerned about the power Big Tech wields over our economy, over the ways we obtain (and are influenced by) information, and over our personal data. That said, Amazon’s termination of Parler from its web-hosting service after the attack on the U.S. Capitol appears to have been sensible and legal. Yesterday a federal district court judge rejected Parler’s request for a preliminary injunction, and it may be helpful to summarize the judge’s decision before the legal merits get spun beyond recognition in the never-ending tumult of our culture wars.
The facts: starting in mid-November, Amazon began notifying Parler of problematic content on its platform. (I won't offer examples of the many posts encouraging violence against specific individuals, but you can see for yourself if you search for Amazon's response brief to Parler.) After the U.S. Capitol attack on January 6, content encouraging violence continued to grow on Parler. The Parler CEO acknowledged a backlog of 26,000 posts that violated its community standards yet remained on its service. On January 9, Amazon announced that it would suspend Parler’s account, and Parler sued.
Note that this case has nothing to do with the First Amendment, which applies only against the government, not against a private company like Amazon. Parler did not even allege a First Amendment violation. So what did Parler claim?
First, Parler alleged that Amazon’s termination of service violated the Sherman Act because it was “designed to reduce competition in the microblogging services market to the benefit of Twitter.” To prove a violation of the relevant portion of the Sherman Act, Parler needed to show 1) the existence of an agreement; and 2) that the agreement was an unreasonable restraint of trade. Unfortunately for Parler, there was no evidence of an agreement between Amazon and Twitter to harm Parler in order to help Twitter. Contrary to Parler’s allegation, Amazon does not currently provide online hosting services to Twitter. According to the court, Parler has provided “only faint and factually inaccurate speculation.”
Second, Parler alleged that Amazon breached their contract by failing to give Parler 30 days’ notice before terminating services. Parler did not deny that content on its platform violated Amazon’s Acceptable Use Policy, and Parler failed to note that the contract permits Amazon to terminate immediately in the event of a breach.
Third, Parler alleged that Amazon intentionally interfered with its business expectancy, which requires evidence of interference with its business “for an improper purpose or [using] improper means.” The court ruled that Parler raised no “more than the scantest speculation” of improper purpose, and the evidence suggests that Amazon’s action “was in response to Parler’s material breach.”
The court concluded that “the likelihood of Parler prevailing on its claims is not a close call,” as Parler’s allegations “are both inaccurate and unsupported.” Further, the court “rejects any suggestion that the public interest favors requiring [Amazon] to host the incendiary speech that the record shows some of Parler’s users have engaged in.” Parler’s motion for a preliminary injunction was accordingly denied.
We need to sort through difficult issues regarding the power that a few large technology companies have accumulated, and we need to try to do so without reflexively grabbing for the familiar lenses provided by our highly partisan political environment. Catholic legal theory should have something to say about all this. Amazon's decision to stop hosting Parler is not the proper vehicle for that conversation – based on the evidence offered, the decision appears to have been morally prudent and legally justified.
A moral theologian urges Pope Francis to bring his forceful defense of prenatal children into a more central place of his pontificate. It is time to stand up firmly and forcefully for their dignity in a culture which increasingly seems them as disposable thing that can be violently discarded.
https://www.thepublicdiscourse.com/2021/01/73754/
Wednesday, January 20, 2021
I don't think this piece, in America, is actually about what is in the title. I am, to be sure, a fan of John Courtney Murray's work, and I agree with the piece's author, Prof. Massimo Faggioli (Villanova) that:
One of Murray’s most important contributions . . . is the principle of the distinction between state and society, and the conviction that the state is limited in its role toward society. “State is distinct from society,” he asserted, and “government submits itself to judgment by the truth of society; it is not itself a judge of the truth in society.”
Faggioli goes on to say that "[i]n the present moment, Murray’s assumption must be revised: Our societies have become more pluralistic and more secular, while political identities have often become more strongly linked to religious belief." I'm not sure what this means. That is, it's not clear to me why these observations about our "societies" and "identifies" have any implications for Murray's emphasis on the aforementioned "distinction."
In any event, the distinction matters. Faggioli, strangely, seems to think that the threat to this distinction is (again) "the culture wars" or the asserted emphasis by "culture war[riors]" on "non-negotiables." In fact, though, the most potent challenges to this distinction, and all that it protects and facilitates, are coming (and will increasingly come) from "progressives" who believe that the state should insist on, and use its various tools to bring about, congruence between (a) the egalitarian rules that constrain state action and (b) the practices, norms, and commitments of non-state communities and institutions. In other words, the "healthy secularity" that Murray supported never meant, for Murray, that the Church should welcome being re-made by licensing and funding conditions.
Whether today’s inauguration causes you to feel more hopeful about our nation’s future or more anxious, I hope Christians can pause for a moment to reflect on the role that our faith plays in our political engagement. If we’re not happy with the voices that loudly proclaim direct knowledge of God’s will for American politics (often arising on the right), and we’re not ready to agree with the voices that insist faith has only a marginal role to play in our political discourse (often arising on the left), what’s the path forward?
My favorite line from Abraham Lincoln’s second inaugural address – delivered near the end of a brutal and bloody war – was his observation that both sides “read the same Bible and pray to the same God and each invokes His aid against the other.” It was a simple recognition of our shared humanity and shared faith, even at a time when we were killing each other in a conflict over the deeply immoral practice of slavery. Lincoln did not accuse those fighting for the Confederacy of not being “real Christians,” he did not claim that God had personally assured him that the Union’s cause was just, and he did not assert that God's plan for civilization hinged on the outcome of the conflict. Instead, he recognized that those on the other side were just as sincere in their faith as he was.
Did that humility weaken his resolve to win the war and end slavery? Not at all. Did his empathy for those supporting the Confederacy lead him to look the other way and ignore their support of a deeply unjust institution? Hardly. Humility and empathy shaped the way he engaged his opponents, not his commitment to the moral claims underlying the conflict.
The answer today is not, as some insist, to exclude commitments grounded in faith from our political discourse. The answer is to articulate the public relevance of our faith commitments in terms that reflect humility and empathy. Three helpful questions emerge from the powerful example provided by Martin Luther King Jr.
First, is faith being invoked as a conversation-stopper? Dr. King’s faith was inseparable from his public witness. Faith was not out of bounds for him, but his faith was not invoked to shut down dissent or signal an us-versus-them worldview. His opposition to segregation was grounded in his belief that “a just law is a man-made code that squares with the moral law, or the law of God.” However, he went on to explain that “an unjust law is a code that a majority inflicts on a minority that is not binding on itself.” King did not ask his listeners to embrace the religious foundations of his truth-telling (though many did); he asked them to embrace the resulting moral claims, regardless of how one arrived at them. He brought his faith into the public square without a trace of embarrassment, but it was the beginning of the conversation, not the end of it.
Second, is faith being invoked as a rationale for self-righteousness? Dr. King’s practice of Christian love did not always make even his own followers comfortable. He challenged his followers to overcome their fears and refused the easy path of telling them what they wanted to hear. Even within the black community of his own city, Dr. King showed that love is not passive – it pushes, it stretches. Dr. King worked to motivate the community to organize and persist in the Montgomery bus boycott, and he encountered significant resistance to his efforts initially. In loving others – friend or foe, black or white – Dr. King did the work that allowed him to see the world through others’ eyes, but he insisted that they expand their view to encompass a truer, less isolated vision of their own well-being.
Third, is faith being invoked in ways that foster hatred of our opponents? Dr. King preached and practiced love for his enemies. Loving the white man, according to King, was in part a response to the white man’s needs, for the white man’s personhood was greatly distorted by segregation, and “his soul greatly scarred.” Dr. King’s advocacy was always a call to restore the relationships that were only possible when black Americans and white Americans stood equal before the law. His invocation of faith made clear that even white segregationists were worthy of the beloved community.
If we seek to build the beloved community over the next four years, how should Christian faith shape our political engagement? If we aspire to follow the examples of Lincoln and Dr. King, we cannot accept the reflexive demonization that increasingly seems to shape Americans’ struggle for justice. Political conflict is inescapable, but authentically Christian engagement must recognize that justice is not ultimately about power – it’s about relationship.
