• Darcy Olsen

Gen justice files amicus curiae

Friends -

Do parentless children have a constitutionally protected interest in being cared for and adopted? Today, Gen Justice argued in the affirmative in its first amicus curiae brief to the United States Supreme Court on behalf of more than 125,000 children living in the foster care system and awaiting adoption.

Alan Gura is our counsel of record. Gura successfully argued two landmark constitutional cases before the United States Supreme Court, District of Columbia v. Heller and McDonald v. Chicago.

By way of brief case background: In Fulton v. City of Philadelphia, petitioners seek the balance between the right to free religious exercise and the interest in freedom from discrimination. Philadelphia excluded Catholic Social Services (CSS) from its foster care program because it claims CSS would be discriminatory if it chose not to license a same-sex couple. CSS claims that the city’s decision to exclude them on account of their religious beliefs violates their First Amendment right to free religious exercise.

We ask the Court to recognize what we believe may be the most critical matter at stake – the children’s profound interest in familial relationships. We argue that the Fourteenth Amendment secures children’s interests in joining and forming families for their protection, education and well-being. Consequently, the state bears a heavy burden to justify restrictions on children’s access to foster and adoptive parents, which serve as lifelines for abused children. We believe respondents’ disagreement with Catholic teaching does not come close to meeting that burden.

At the time the Fulton case was initiated, 29 out of 30 licensing agencies in Philadelphia would certify same-sex couples. Respecting petitioners’ religious views does not bar any of those prospective parents from pursuing fostering and adopting. But diminishing the role of faith-based agencies decreases the pool of available adoptive placements, depriving countless children of families.

The Supreme Court has long held that individuals have strong fundamental rights to start a family, by marriage and by procreation. If individuals’ interests in family formation are protected, then the Court should acknowledge that those interests are not exclusive to adults.

The Court has never squarely addressed the issue of whether children have a constitutionally protected interest in being adopted. However, a line of lower court cases hold that states owe foster children a constitutional duty to provide for children’s well-being and protect them from harm. That reasoning should include recognition that children are seriously harmed when the state interferes with their prospects for adoption.

Poor state policies have contributed to some children spending their entire lives in the foster care system. If the court were to acknowledge our arguments that parentless children have a constitutionally protected interest in being cared for and adopted, going forward states would be required to remove arbitrary and undue barriers to adoption. Regulations and practices that are harmful to children’s prospects for adoption and finding homes would be unconstitutional.

Thank you,

Darcy Olsen