Wolves in Sheep’s Clothing: How Religious Exemption Laws for Discriminatory Private Agencies Violate the Constitution and Harm LGBTQ+ Families

For LGBTQ+ parents who live in states where a select few faith-based private agencies control the placement of a majority of the state’s children, religious organizations that refuse to place children with LGBTQ+ prospective parents pose a particularly concerning barrier to fostering and adoption. To turn away otherwise qualified prospective parents solely based on their sexual orientation or gender identity is to further deprive a system that is already burdened of one of its key components, directly antithetical to the primary goal of the child welfare system. Although religious child welfare agencies have played, and continue to play, an important role in child welfare services in the United States, the fact that many of them still refuse to serve LGBTQ+ prospective parents presents a series of grave ethical and constitutional issues. Looked at through the lens of seminal caselaw and legislation on the issue of LGBTQ+ parenting in the United States, this article aims to challenge the constitutionality of religious-based exemptions in the context of child welfare agencies. This article argues that such discrimination against same-sex couples and/or transgender couples in child welfare services is a violation of both the Fourteenth Amendment’s Equal Protection Clause and the First Amendment’s Establishment Clause. Not only does discriminating against otherwise qualified LGBTQ+ parents have no rational relationship to a legitimate governmental objective, it actually undermines the government’s stated interest in providing for the safety and well-being of the children in their care. Furthermore, discriminatory faith-based organizations who are contracted to perform a government function and receive government funds also violate the Establishment Clause, which mandates separation of church and state and bars states or those who might be considered “state actors” from stipulating religious criteria as a prerequisite to receiving services. Through the mapping out of case law and legislation that have laid the groundwork for the current LGBTQ+ parenting landscape in the United States, I suggest that the critical constitutional questions at issue here are best framed in light of Fulton v. Philadelphia, a case currently on the Supreme Court’s docket that will addresses whether or not city agencies may stop contracting with private child welfare services when those services have policies of turning away same-sex couples. This article won first place in the 2020 Howard C. Schwab Memorial Essay Contes