Reinforcing a Crumbling Wall: Prohibiting Delegations to Religious Foster Care Agencies

In 2021, in Fulton v. City of Philadelphia, the U.S. Supreme Court held that the First Amendment’s Free Exercise Clause prohibits Philadelphia from canceling a foster care contract with a religiously-affiliated agency because of that agency’s refusal to work with same-sex couples. Pennsylvania law requires foster parents to be certified by the state but delegates the certification authority to private contractors. Under this arrangement, the religious foster care agency in question—Catholic Social Services of Philadelphia—exercised the state’s power to determine which otherwise eligible applicants could obtain the necessary certification.

The Court has previously held that the Establishment Clause prohibits the government from delegating its authority to religious organizations—a rule clearly implicated by Philadelphia’s foster care contract with Catholic Social Services. Although Catholic Social Services’ religious beliefs explicitly informed its use of delegated power, the Court did not consider the Establishment Clause in Fulton. As a result, foster care and adoption agencies around the country continue to claim free exercise rights to discriminate against prospective foster and adoptive parents on the basis of sexual orientation and religion. This Note argues that, although the Court has underutilized its religious nondelegation rule, that rule provides the appropriate framework for considering the constitutionality of religiously based discrimination in the foster care system.