Press Release  AG Healey Leads 23 States in Supreme Court Brief Defending Nondiscrimination Laws and the Right of Same-sex Couples to Be Foster Parents

BOSTON — Massachusetts Attorney General Maura Healey today led 23 attorneys general in filing a brief with the U.S. Supreme Court in support of the City of Philadelphia’s nondiscrimination law and the right of same-sex couples to be foster parents.

The brief argues that Philadelphia is entitled to require its own publicly contracted foster care agencies to follow the City’s nondiscrimination law and consider all qualified families seeking to care for children in need, without regard to prospective foster parents’ race, religion, sexual orientation, or other factors unrelated to their parenting abilities.

“We must do everything we can to find capable and caring foster parents for vulnerable children in state custody,” AG Healey said. “We urge the Court to uphold our ability to prohibit discrimination by foster care contractors, so that we can continue to ensure that all qualified parents have the opportunity to open up their homes to children in need.”

The amicus brief supports the City and its nondiscrimination policy in a lawsuit brought by a city contractor seeking to be exempt from the policy because of its religious objection to considering same-sex couples as prospective foster care parents. In 2019, the Third Circuit unanimously rejected the foster care provider’s arguments that the First Amendment requires granting such exemptions.

Today’s brief argues that the government is entitled to pursue policies that best serve its residents’ needs in providing government-funded services, including policies that prohibit discrimination to provide vulnerable children with as many opportunities as possible to find loving homes. The brief argues that such requirements do not violate private contractors’ rights to free exercise of religion or free speech, because the nondiscrimination requirements apply only to the work such organizations choose to undertake as government contractors, and private organizations remain free to exercise their beliefs and rights to free speech outside the scope of that work.

The states, the brief argues, share an interest in ensuring that all their residents have equal access to government services, including foster care services provided by government contractors. “To ensure the welfare of every child in state custody, we welcome all qualified prospective foster parents who volunteer to open their homes, including LGBTQ individuals and same-sex couples,” the brief reads. According to the brief, nondiscrimination polices like Philadelphia’s are critical to the states in carrying out their obligations to vulnerable children, as they ensure the deepest possible pool of welcoming foster families while preventing the grave harms caused by discrimination against prospective foster families.

Today’s brief was led by AG Healey and joined by the attorneys general of California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and Wisconsin as well as the District of Columbia.

The amicus brief was handled by State Solicitor Bessie Dewar, Civil Rights Division Chief Abby Taylor, Angela Brooks, Director of AG Healey’s Child and Youth Protection Unit, and Assistant Attorney General Josh Olszewski-Jubelirer of the AG’s Civil Rights Division.

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