The Child’s Rights Forgotten, Again: Reframing Fulton v. City of Philadelphia

Abstract

In early November, the Supreme Court heard argument in Fulton v. City of Philadelphia, a case with profound implications for religious exercise, LGBTQ rights, and child welfare. The last of these has, wrongly, become subordinated to the other two in this litigation. This Article explains why the case has been improperly framed as a contest between two sets of adult rights. The only constitutional constraint on the state in connection with placement of children in foster care, I argue, is the Fourteenth Amendment right of children against being taken into state custody except insofar as the state does so to protect and promote the children’s wellbeing. This is because in the child protection system, the state acts in a parens patriae role, not a police-power role. Accordingly, though Catholic Social Services is right on the facts, and though the Philadelphia Department of Human Services was wrong to terminate CSS’s contract to provide foster care services, the Court should dismiss CSS’s First Amendment claim as simply impertinent. CSS should instead assert third-party or next-friend standing to sue on behalf of children taken into DHS custody, for an injunction against exclusion of CSS from the foster-care system because that is bad for children.