Smith\u27s Last Stand? Free Exercise and Foster Care Exceptionalism

Part I first situates Fulton [Fulton v. City of Philadelphia] within two broader contexts—the clash between social equality rights for sexual minorities and religious freedom, and a pattern of eliding children from legal contests over their lives. It then explains why the standard constitutional framing of social equality versus religious freedom contests is improper when the state is acting as guardian and proxy for children or other non-autonomous persons. Part II sets out a proper framework for analyzing these conflicts, elucidating the scope and nature of the state’s parens patriae authority—a lacuna in constitutional jurisprudence. Part III applies that framework to the foster care context, concluding that the correct practical outcome in Philadelphia from a child-welfare perspective is for the City to continue contracting with CSS, as the Supreme Court has effectively ordered, while noting how different circumstances might yield a different outcome in other localities. This abstract has been adapted from the author\u27s introduction