The Supreme Court must not license taxpayer funded discrimination

Five years ago, in a landmark ruling for equal justice and the LGBTQ community, the Supreme Court of the United States confirmed marriage equality as the law of the land. But now, anti-equality forces are trying to use this powerful force for progress to advance and enshrine discrimination into law. 

The Supreme Court recently announced it will hear a case to decide whether a local government contractor can pick and choose which civil rights laws it follows. Specifically, the case involves a foster care agency in Philadelphia that sued after the city stopped contracting with the agency when it refused to comply with non-discrimination requirements to work with all qualified families, including same-sex couples.  

With hundreds of thousands of children in desperate need of loving and caring homes, the outcome of this case could have profound and far-reaching consequences. The court must uphold the fundamental principle that government-funded child welfare agencies are required to abide by non-discrimination laws and perform the work of the contract.

More than 400,000 children across the country are in foster care on any given day. We can all agree that governments should prioritize their needs. There’s no doubt that child welfare services should be guided by what is in the best interest of these children. It is never in their best interest to deny them a qualified, loving family simply because that family does not share all of the religious tenets of a placing agency.

Religious organizations who engage in child welfare work are certainly entitled to their religious viewpoints, and their religious beliefs are firmly protected under the First Amendment. Cities and states cannot and should not be dictating matters of faith. However, there is no constitutional right to contract with local governments and use those taxpayer-funds to unlawfully discriminate.

Discrimination on the taxpayer’s dime is unacceptable. No organization contracting with governments to provide a public service should have a special right to use that taxpayer money to marginalize certain people. When a city or state awards a contract to care for children who are wards of the government, those contractors should be required to abide by the law and the requirements of that contract.  

Accepting government funds is a choice, not an obligation. Many organizations, including both religious and secular, have declined to accept government funds because they do not wish to entangle themselves in an array of requirements. That is their right.

The consequences of the court’s decision could be profound and far-reaching. If the court decides that organizations can pick and choose which non-discrimination laws they follow, it could open a floodgate of discrimination in child welfare services against not only LGBTQ people but also people of different faiths, single women and people with disabilities. It could also have consequences in a wide variety of other areas protected under civil rights laws, including access to homeless shelters, substance abuse programs, emergency services, food banks, medical care, child care, meal service programs and elder care. It would literally create an untenable system where governments could no longer guarantee protections to beneficiaries of government-funded services. 

One of the cruelest consequences of the court’s potential decision could be that these contractors would be allowed to refuse to place foster children with members of their own extended families — a practice often considered to be in the best interest of the child. Based solely on the agency’s religious beliefs, a loving, LGBTQ grandparent, for example, or a qualified LGBTQ sibling could be deemed unsuitable by the contractor. 

The best interests of children in need of loving and caring homes is not served by giving adoption and foster care agencies a special license to discriminate. In fact, discriminating against qualified prospective parents using government funds does a disservice both to the children who need homes and to the public at large. It’s crucial that the Supreme Court uphold the lower court ruling rejecting the argument that religious agencies performing public child welfare services have a special right to discriminate. 

The court should not license taxpayer-funded discrimination. The rule of law and the children relying upon it will suffer if that occurs.

Alphonso David, President of the Human Rights Campaign. Follow him on Twitter @alphonsodavid