Fulton's flaw: In the constitutional clash between religious liberty and LGBTQ+ rights, foster kids are neither seen nor heard

Abstract

AbstractThis essay asserts the primacy of children's interests as a constitutional check on the religious liberty interests of government contractors that express in ways adverse to the best interests of foster children harmed by discriminatory foster care screening processes. The piece begins with an examination of child welfare realities characterized by increasing numbers of foster children and shrinking pools of prospective parents. It goes on to highlight the harmful effects of discriminatory, faith‐based placement and certification services on foster children; explains how such policies and practices breach the City's parens patriae duty to maximize the pool of prospective foster families for foster children; and presents data documenting negative outcomes for foster youth when placement options are circumscribed by categorical exclusion of LGBTQ+ families. The piece concludes with a critical examination of the Supreme Court's failure to factor children's best interests in its constitutional calculus and how the Court's holding endorses religious based action by government contractors that will harm vulnerable children confined to our nation's overcrowded foster care systems.