Editor’s Note: The year 2021 was full of ups and downs – for the country, and for church-state separation. As the year draws to a close, we're looking back at the top 10 church-state stories, how Americans United rose to the challenge to defend religious freedom and what’s on the horizon for 2022.

The Supreme Court issued a troubling ruling regarding religious discrimination in taxpayer-funded foster care earlier this year, but the decision had limited impact beyond that particular case, Fulton v. City of Philadelphia. As a result, the issue of whether government-contracted foster care agencies can use religious litmus tests to reject prospective parents continues to be fought in court – including in three cases AU is litigating.

In Fulton, the Supreme Court issued a narrow decision, limited to the specific facts of the case, which allowed Catholic Social Services to continue to refuse to work with LGBTQ parents, in blatant violation of the nondiscrimination policy in its contract with Philadelphia. Because the city was authorized to allow individualized exemptions from the non-discrimination requirements – though it never had done so – it had to exempt Catholic Social Services, the court determined.

The decision was focused on the unique facts of Philadelphia’s contract, and so legal analysts believe the decision doesn’t offer broad guidance for how other cases involving faith-based discrimination in foster care must be handled.

“Significantly, the court declined to rewrite the First Amendment to grant a broad license to discriminate in the name of religion,” AU President and CEO Rachel Laser stated in response to the Fulton ruling. “Religious extremists did not get the sweeping free pass they were seeking to discriminate wherever and however they want.”

The court also was swayed in the Fulton case by the fact that there was no record of any LGBTQ parents being turned away by Catholic Social Services in Philadelphia, and because there were several other agencies in the city willing to work with LGBTQ parents.

That’s not the case with several of the clients AU is representing:

  • Easter v. HHS: On Oct. 13, AU, Lambda Legal and the law firm Orrick, Herrington & Sutcliffe LLP filed a federal lawsuit on behalf of Kelly Easter of Tennessee, who was unable to foster refugee children because the federally contracted agency near her home won’t accept LGBTQ foster parents. The lawsuit was filed against the U.S. Department of Health and Human Services, along with several HHS officials and programs, for enabling and sanctioning discrimination.
  • Marouf v. Becerra: Fatma Marouf and Bryn Esplin, a married, same-sex couple in Texas who also tried to foster refugee children, were turned away by a government-funded provider because they don’t “mirror the Holy Family.” In November, the federal government announced its intention to contract with a “third-party entity” to identify same-sex foster parent applicants in the Dallas-Fort Worth area and direct them away from a discriminatory provider and toward an alternative grantee willing to accept LGBTQ applicants. But filtering discrimination through a third-party entity does not cure HHS’s misconduct – the Constitution has never allowed the government to do indirectly what it is forbidden to do directly. The proposed scheme (as it has been articulated) would reinforce and further sanction the discrimination and harm allowed by HHS.
  • Maddonna v. HHS: Aimee Maddonna, a Catholic mother of three from South Carolina, was rejected by an evangelical Christian agency because she’s the “wrong” religion. In November, HHS took a positive step when it rescinded exemptions granted by the Trump administration that allowed child welfare providers to use religion to discriminate against potential foster parents in several states, including Maddonna’s home state of South Carolina.

All of these women have voiced their heartbreak at being denied the opportunity to provide safe, loving homes for vulnerable children, and their disbelief that government-led programs are permitting such discrimination in the name of religion. But above all, AU’s clients have spoken out about how this discrimination hurts children.

“The federal government is supposed to be helping them, but by denying a loving home to a child or young person in need, they are not doing that; they are actually hurting them,” said Kelly Easter. “I am qualified and can provide a safe and stable home for a child. How is it better for them to stay in a group setting instead of a home with someone who can care for and support them adequately?”

AU will continue to fight in court on behalf of Kelly, Fatma, Bryn, Aimee and others harmed when religious freedom is misused to license discrimination. Join us!

(Photo: Aimee Maddonna and her children)