➤ FOSTER CARE BIAS, from p.22 crimination claims deserve heightened or strict
directing federal agencies to adopt policies giving
maximum play to “religious freedom,” has
attracted several legal challenges as it has been
rolled out across the federal government.
The stigma of being turned down from a
government-regulated and funded program because
of one’s religion or sexual orientation was
enough of an injury, according to Cain, to give
these plaintiffs individual standing to challenge
the policies under which they suffered discrimination
and to seek injunctions against the federal
and state offi cials who authorized the waivers.
Turning to the merits of the complaint, Cain
found that the plaintiffs’ allegations, assumed
to be true for purposes of deciding a motion to
dismiss, included suffi cient facts to bring both
the Establishment Clause and the equal protection
requirements — of the Fifth Amendment
regarding the federal government and the 14th
Amendment regarding the state government —
into play.
The Supreme Court has long-standing precedents
that government actions that aim to —
or whose primary effect is to — advance religion
can be challenged under the Establishment
Clause. The government is supposed to be neutral
in matters of religion. The plaintiffs argue
that the federal and state governments have affi
rmatively collaborated to allow a private agency
performing a public function funded by the
government to give preference to those with its
religious beliefs and exclude those with different
or no religious beliefs.
Turning to the equal protection question,
Cain decided, surprisingly, that the plaintiffs’
claim should be limited to the matter of sexual
orientation. Here, Cain accepted the defendants’
argument that the waivers allow “any religiously
affi liated child placement agency to apply its
own religious criteria to select prospective foster
parents,” and so they are on their face neutral
with respect to religion.
This is an odd conclusion. While the waiver
policy on its face “treats all religions equally,”
its application by the state here is to license an
agency that does not treat “all religions equally”
in running its program, but rather discriminates
against all religions that it fi nds incompatible
with Evangelical Christianity. And, the
waiver itself treats non-religion unequally with
religion. This seems to violate the concept of
equal protection when applied to the issue of
religion. But Cain did not see it that way, and
granted the motion to dismiss the claim of an
equal protection violation on the basis of religion.
Still, Cain was willing to let the equal protection
claim proceed on the theory of sexual
orientation discrimination. While pointing out
that neither the Supreme Court nor the Fourth
Circuit Court of Appeals, whose precedents are
binding on the district court in South Carolina,
has yet found that sexual orientation dis-
scrutiny — placing a signifi cant burden on the
defendants to provide a non-discriminatory justifi
cation for the waiver policy — those courts
have recognized that the government needs a
legitimate policy reason for allowing an agency
to carry out governmental functions in a discriminatory
fashion regarding sexual orientation.
The court found that the plaintiffs had adequately
shown they were turned down as a
same-sex couples because of their sexual orientation.
In fact, the defendants failed to assert
in their motion to dismiss any substantive
argument about why same-sex couples should
be excluded from being foster parents. Instead,
they asserted the absurd contention that the
plaintiffs had not alleged facts that would support
a sexual orientation discrimination claim.
The court was not willing to accept such sophistry.
Cain found that the sexual orientation
discrimination claim survives the motion to
dismiss.
Discovery is the next step in this lawsuit.
Arthur S. Leonard is the Robert F. Wagner Profess
of Labor and Employment Law at New York
Law School and editor of LGBT Law Notes.
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