In the interest of offering content both didactic and accessible, the following Serious Topic will not include proper source support. This means you shouldn’t believe any of it. If you find the discussion compelling, however, I encourage you to pursue a more demonstrable truth.
Recently, a speaker visited my school to discuss foster care and the way the state and private organizations interact in the allocation of foster children to loving families. The issue I’d like to discuss today is the Establishment Clause conflict that arises between the two.
For simplicity’s sake, we can equate Establishment Clause issues to the conflict between church and state. In fact, the original importance of that idea comes from Thomas Jefferson’s personal correspondence, but the Establishment Clause has been interpreted to form the legal basis for much of the curtailment of state involvement in the religious sphere (and vice versa).
In the specific context of foster children, the problem arises when the state contracts with religiously-affiliated groups in the aid of foster children. I’ll offer a paradigmatic (if simplified) example:
A Catholic charity group (we’ll call it CCG) signs a contract with the federal government. The contract stipulates that the federal government will fund the charity’s efforts to find good homes for foster children. It also stipulates that CCG will have the leeway to allocate children based on their own criteria, meaning that (1) Only Catholic families will get children, and (2) no homosexual couples will get children.
Note: Similar scenarios occur in, for example, the context of rehabilitative centers. A Catholic charity might contract with the state for funding, but stipulate that it will include spiritual training as part of the rehabilitation process, and that it won’t offer contraceptive or family planning assistance.
Another note: I’m just picking on Catholics because the case law happens to; you could insert any other religious persuasion and the legal implications wouldn’t change.
This scenario has been ruled unconstitutional. I think that’s the right judgment. This is a case of the federal government funding private religious practice. The state has a monopoly on foster children; each foster child is a ward of the government. If this were a private adoption scenario (e.g., a pregnant woman decides she wants to offer up her baby for adoption and solicits only Muslims as potential adoptive parents), there would be no problem.
That said, only the very unimaginative would view such a ruling as anything other than a challenge! I wonder what changes CCG could make to fit within constitutional bounds?
Certainly if the CCG swore off any biases it would be OK. That is, contracting with a group that is nominally religiously affiliated isn’t problematic, provided the government isn’t funding religious practice. So if the CCG stipulates that it will use only the foster program’s own guidelines for selecting homes for foster children, the government would probably, I think, be allowed to contract. There are some practical limitations (e.g., is the CCG really escaping all of its biases?), of course.
What about a closer question? There might be good reason to nitpick, as I speculate (based on no evidence whatsoever) that there are some couples who both (1) would make great foster parents, and (2) are only willing to adopt through religious entities. We don't want to exclude these people from the running. As a solution, I propose that the government be permitted to contract with religious organizations—even when doing so means embracing their religious biases—when the following conditions can be met:
-The religious organization is not given any executive power in allocating children; the child remains a ward of the state. Instead, the group provides the state only with information—e.g., a list of potential foster parents. A list, yes, subject to religious biases.
-There is sufficient evidence that contracting with that organization substantially supplements the state’s own list of potential foster parents. In other words, the contract must actually increase foster children’s access to homes.
-The state makes an effort to elicit similar contracts from other biased groups, as well as its own efforts to seek potential foster parents based on neutral criteria.
When I proposed a very simplified version of this plan to the speaker, she shot me down. She might have been right to do so. Even under this system, the state is funding religious bias, which is kind of a per se no-no. However, there’s a creative argument here, I think. The state has also neutered the religious organization of all actual executive power, so it’s really just buying information. That information is subject to certain filters, which happen to be religious, but I’m not sure that’s a deal-breaker. It certainly wouldn’t be unconstitutional for the government to contract with a neutral non-profit specializing in finding foster parents. That group would naturally use certain criteria for determining what qualifies candidates, and the information would be more or less valuable to the government depending on how accurate and exhaustive it was. Limiting the search to include only Catholics just makes that information less exhaustive, and thus less valuable. In other words, the state isn’t paying for the religious bias; it’s paying for neutral information, discounted the influence of a religious bias.
Of course, that’s not necessarily true. If the state doesn’t diversify its sources, it could mean that all the foster children would just go to Catholics, essentially establishing a Catholic cartel for foster kids (I can’t believe I just wrote that). But that can be avoided if we enforce other sources of information who aren’t subject to such limitations. Looking to different religious groups—all of them likely very specialized in their communities, and thus good sources of information—might give the state a cheaper and more exhaustive picture of the potential foster parent scene on the whole.
I have to imagine that there are large swathes of the USA where religious charities are better-positioned than the government to find foster parents. Then again, these are probably the exact communities where balancing the problematic contract with countervailing factors would be the toughest to do.
It’s a tough point to argue. I think I would lose, ultimately, but perhaps not 9-0. At least I’d have the sympathetic client; you can be sure that the more liberally we allowed these contracts, the more kids would end up in good homes. The ends never justify the means, legally, but sometimes they do morally.