It has been almost a decade since the United States Supreme Court legalized same-sex marriage (Obergefell v. Hodges, 576 U.S. 644). Yet, in June of 2021, the Court allowed a religious agency the authority to refer same-sex and unmarried couples wishing to foster children elsewhere (Fulton v. City of Phila., 593 U.S. 522, 141 S. Ct. 1868). Now, under the Trump Administration, families may be questioning their adoption options.
In her latest blog, KingSpry’s Adoption and ART Practice Chair and Family Law Attorney, Dorota Gasienica-Kozak, Esq., discusses the ruling in Fulton and explains how it offers an opportunity for individuals to understand how to have the best, unrestricted family building process.
Facts of the Case
The City of Philadelphia (the “City”) stopped referring children to Catholic Social Services (“CSS”), a foster care agency, when it became aware of CSS’s policy of not licensing same-sex couples to be foster parents. The City conditioned that it would renew its foster care contract with CSS only if it would agree to certify same-sex couples.
CSS later sued the City, arguing that the “referral freeze” violated the Free Exercise and Free Speech Clauses of the First Amendment. The question before the Court was whether the actions of the City violated the First Amendment.
The Court’s Analysis
The Court explained that the City’s contract with foster care agencies contained a non-discrimination requirement; however, it also allowed for individual exemptions from such requirement at the sole discretion of the Commissioner of the Department of Human Services.
Because the contract allowed for individual exemptions, the non-discrimination requirement was subject to strict scrutiny. Meaning, the City had to establish that it could achieve its interests in a manner that did not burden the religious rights of CSS.
Ultimately, the City’s interests—maximizing the number of foster families, protecting itself from liability, and ensuring equal treatment of prospective foster parents and foster children—did not justify its failure to grant CSS an exemption from the non-discrimination requirement. As such, the Court held that imposing the non-discrimination requirement violated CSS’s constitutional right to free exercise of religion.
The Decision
Ultimately, the Court’s decision in Fulton upheld the right of CSS to decline to certify same-sex and unmarried couples as foster parents. The Court stated that “[t]he refusal of [the City] to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.”
The decision, however, did not establish new legal standards, nor did it address any of the broad constitutional issues that were raised by the many parties interested in this case.
The ACLU’s Response
In response to the Court’s decision in Fulton, the American Civil Liberties Union issued a publication expressing that it was “relieved that the court did not recognize a license to discriminate based on religious beliefs.” Because the Court’s decision was specifically based upon the individual exemptions provided for in the City’s contract, the “decision will not affect any foster care programs that do not have the same system for individualized exemptions that were at issue [in Fulton].”
Key Takeaways for Families
The positive takeaway here is that there are still countless agencies who welcome all prospective parents. It is important to find the best fit for your family’s needs.
Familiarize yourself. Prior to choosing an adoption agency, familiarize yourself with the services the agency offers. Some parents look for an agency that provides counseling and support during the adoption process. Others find it helpful to know the agency’s typical wait time to adopt a child and/or their adoption success among same-sex couples. Talking with other LGBTQIA+ couples about their own adoption process experiences can also be beneficial.
Open Adoption. One of the adoption options available to same-sex couples is open adoption. In an open adoption, the child maintains contact of some type with their birth family. The level and type of contact is determined on a case-by-case basis and can vary to fit each individual family’s needs.
In Pennsylvania, open adoptions are not legally binding unless both parties enter into a voluntary written Post Adoption Contact Agreement (“PACA”). The PACA must follow Pennsylvania law, use statutory language, and be signed by the court. The PACA provides for continued communication between the birth parents and adoptive family. Post-adoption contact can differ among families and may include the exchange of photos, videos, letters, phone calls, emails, and in some cases, visits.
For the child, an open adoption can be very valuable, providing them the opportunity to understand their heritage or have access to their medical information and history. On the other hand, some adoptive parents find that open adoptions are initially threatening. Over time, however, adoptive parents find that these feelings often diminish once relationships have been created.
Other Adoption Options. Depending on the needs of you and your family, other adoption options are available to same-sex couples, including becoming a step-parent (confirmatory) or second parent to your partner’s child. Confirmatory adoption allows the individual to step into the role of legal parent or confirm their status as a parent of the child. This type of adoption gives both parents legal rights, even if the parent is not biologically related to the child. Confirmatory adoption requires the parents be legally married, but second-parent adoptions do not. The Supreme Court’s ruling in Obergefell guarantees same-sex couples the right of marriage, including the option for step-parent adoption. Pennsylvania law also allows parents to petition for second parent adoption, regardless of marital status, but this is applied inconsistently depending on the county in Pennsylvania.
If you have questions regarding adoption options for you and your family, KingSpry’s ART Law Group Chair, Dorota Gasienica-Kozak, Esq., is prepared to assist you. Gasienica-Kozak is a fellow of the Academy of Adoption and Assisted Reproduction Attorneys (AAAA), a member of the American Society of Reproductive Medicine (ASRM), a member of SEEDS, a promoter for RESOLVE: The National Infertility Association, and a committee member of the American Bar Association’s Family and ART Law sections.
