In 2017, Samantha Hutcherson Bannon and her wife, a physician, were moved by the plight of refugee and unaccompanied children coming to the United States. “We felt strongly that we could provide a loving, stable home as foster parents for a child escaping difficult circumstances,” Bannon told The Daily Beast.
Their research unearthed an organization, Bethany Christian Services, located in the Philadelphia suburbs where they live and where Bannon is a stay-at-home mom to the couple’s two young daughters, aged 3 and 5. Bannon registered for an in-person information event hosted by the organization. After she arrived, Bannon told the staff she and her wife were a two-mom family. The three staff members present were “clearly uncomfortable” learning this.
“There was shock and disapproval,” Bannon recalled. Two staff members left the room without addressing her. A third told her the organization “did not handle same-sex placements. She offered to give me information about alternative organizations. I explained that we were specifically interested in fostering a refugee child and, as she knew, there were limited organizations that handled these placements, and they were the only agency dealing with unaccompanied minors,” Bannon said.
“In response, she said that we wouldn’t be a good placement and that the refugee children had ‘already been through enough.’ This was all said in a room full of prospective foster parents. I was embarrassed, and quickly exited. Later the anger and hurt came through. My wife and I take parenting very seriously, and we certainly don’t think our girls suffer from us being a same-sex couple. That was the end of the road for us. We didn’t pursue it any further.”
In 2018 Bethany Christian Services changed its policy to be inclusive towards same-sex parents, but the issue Bannon confronted has now reached the Supreme Court, which last week heard the case of another Philadelphia-based organization, Catholic Social Services (CSS), which wants to prohibit same-sex couples from becoming foster parents. In Fulton v. City of Philadelphia, the Court—now with a 6-3 conservative majority—is considering whether the city may bar CSS from screening potential foster parents given that it refuses to work with same-sex couples.
The case is centered around the right-wing anti-LGBTQ battle cries of “religious freedom” and “religious liberty,” which posits that organizations should be able to discriminate against LGBTQ people if they feel their religious beliefs dictate it so.
At last week’s argument, Chief Justice John Roberts asked if this religious right to discriminate was “in tension with another set of rights, those recognized in our decision in Obergefell”—referring to the 2015 Supreme Court decision which enshrined marriage equality.
Justice Samuel Alito made his antipathy towards LGBTQ equality proudly evident in a Federalist Society address last Thursday, stating, “You can’t say that marriage is a union between one man and one woman... Until very recently that’s what a vast majority of Americans thought. Now it’s considered bigotry.”
At last week’s argument, Alito said, “Didn’t the court say that there are honorable and respectable reasons for continuing to oppose same-sex marriage? Would the court say the same thing about interracial marriage?” Justice Kavanaugh suggested Philadelphia was “looking for a fight” in requiring the taxpayer-funded CSS not to discriminate against same-sex couples.
A lower court, the U.S. Court of Appeals for the Third Circuit in Philadelphia, ruled against CSS; the newly conservative-dominated Supreme Court may rule for the agency—and in so doing set in legal precedent a constitutional right to discriminate against LGBTQ people that could affect LGBTQ civil rights and equality far beyond adoption and fostering. The experiences of same-sex foster parents and LGBTQ kids who were adopted or fostered were notably missing from last week’s oral arguments. They are watching the case with alarm and nervousness—and an all-too-familiar, painful knowledge of the discrimination and prejudice within the field.
“It terrified us. For a while we thought we would not be able to adopt these children. It was nerve-wracking.”
Jess VanDeVoort and Arriel Stafford, a married lesbian couple from Iowa have, like Samantha Hutcherson Bannon and her wife, been put off from fostering after a series of negative experiences.
In 2018, the previous heterosexual foster parents of two of their four children (all from the same biological family) wrote a series of letters to family members and officials involved in the fostering process saying the children should not be placed with VanDeVoort and Stafford because they were gay, and because there were “no male role models” in the home.
Then a licensing worker seemed intent on judging them as LGBTQ parents too, imperiling the couple’s desire to adopt the fourth child in the sibling group. The worker “had a hard time believing my wife and I would not be pregnant tomorrow, and if we were to have biological children would that not sway our decision,” VanDeVoort recalled. The worker insisted that the Department of Human Services oversee the case, with VanDeVoort and Stafford being the only couple treated this way in their cohort of fellow prospective parents.
“It felt horrible, almost unreal,” VanDeVoort told The Daily Beast. “It was like, ‘This is 2018.’ We thought we were beyond this issue, but apparently not for a lot of people. It terrified us. For a while we thought we would not be able to adopt these children. It was nerve-wracking.” The licensing worker went as far as to recommend the couple’s youngest child be removed from their home. “We were on pins and needles, but she was overruled. She never said sorry she had made a mistake, that she was wrong. We never heard from her again.”
Nothing ultimately torpedoed the family VanDeVoort and Stafford have built; their four foster children, aged 17, 13, 12, and 7, are in their care. “But my wife and I hoped that when the older kiddos moved out, we might take in another sibling group. Then we were completely blindsided by prejudice. We just don’t know now. If there was a possibility of having the same licensing worker, we would not do it.”
Leslie Cooper, deputy project director of the ACLU’s LGBT & HIV Project, told The Daily Beast said the CSS’ case in Philadelphia was “quite extreme,” claiming it has a constitutional right to receive a taxpayer-funded contract to provide a government service, then also disregard the non-discrimination requirements in that contract and be able to turn away people based on a religious test.
“There is simply no support in law for that kind of claim, and the implications for accepting such a ruling would be staggering,” Cooper said. “The court is being asked to rule in a way that is really contrary to conservative principles. The court is being asked to tell the government that people who accept taxpayer dollars to provide a government service to the public get to override how the government says that program should be provided.”
This would supply a green-light for foster care agencies feeling able to turn away families on bases that have nothing to do with caring for children “that will make it even harder to find families—and we already don’t have enough of them,” Cooper said.
Weston Charles-Gallo, 21, from Kansas City, Missouri, told The Daily Beast he had been “on the verge of suicide” as a foster child until he was placed with gay parents, who helped him realize his worth as an LGBTQ person.
He said his biological father was an alcoholic and drug addict; his mother was away from home a lot. Charles-Gallo came out at 14. His mother used his sexuality against him, he said, regularly threatening to tell his father about it. Indeed, she used it in the middle of one argument by telling her husband: “The reason you’re a bad father is because your son turned out gay.”
His father was in and out of jail, and also a deacon at church. “Just because you go to church doesn’t make you Christian. Religion is so subjective. I don’t think God hates me because I’m gay, and I don’t think being gay is a sin.”
An altercation resulted in Charles-Gallo being removed from his home; he was placed in juvenile detention, then foster care. The first family he was placed with tried “to make” him be like their biological son, and he asked to be removed from their care.
“I was discriminated against at school and home,” Charles-Gallo recalled. “I had death threats on Facebook. I was bullied and harassed. I had thoughts of hopelessness. I struggled with suicide ideation. I tried to take a whole bunch of pills. I just wanted to sleep and not wake up. I cut myself and was hospitalized. I was a Black, gay kid in the foster care system. I felt a total lack of stability and security, as do so many of the 30 percent of kids who are LGBTQ in the system. Being gay doesn’t define who I am, but it’s an important part of who I am.”
He was placed with his beloved gay dads when he was 15 and adopted by them a year later.
“It was such a big relief,” Charles-Gallo said. “I had never felt so accepted and affirmed. I had been through such trauma, I just wanted some semblance of stability and a sense as if I belonged. With my dads, I definitely felt that way. They were able to show, guide, and mentor me in a way straight couples would not have been able to do. They just wanted me to be in a loving and affirming home. I wanted that too, and LGBTQ kids tend not to find that normally. Nothing is ever perfect, but I think I was able to find my perfect. If it wasn’t for my dads, I don’t know where I would be today. I am so thankful to my dads.”
Denise E. Brogan-Kator, chief policy officer and interim CEO of advocacy group Family Equality, told The Daily Beast that the Supreme Court case should be straightforward.
“This should be a contractual case. The Supreme Court should not be getting involved in carving out exemptions that allow contractors to decide which clauses of contracts they will honor and which they will not. It should be that simple. But I continue to be nervous because the opening question of the Chief Justice tried to frame the free exercise of religion against LGBTQ rights, specifically the freedom to marry. That worries me.”
Brogan-Kator doesn’t feel that the press gives “enough attention” to the case “not being about whether we have too many agencies serving our youth, but about the number of families available to take in youth. Any agency that can’t recognize that by turning away qualified loving families you are hurting kids seems to me to be not necessarily operating with the best interests of children first. I really felt the justices last week did not focus on what we are talking about is turning away qualified families.
“There should not be a contest between religious entities doing vital, important, and respected work as part of the child welfare system, which they have long done, and whether or not loving, same-sex parents can provide good homes to kids. It seemed to me that the six conservative justices wanted to frame this as a religious freedom versus LGBTQ equality case, and I think that is an unfair and incorrect characterization.”
It isn’t just LGBTQ people that could fall foul of court-sanctioned discrimination, but other faith groups and minorities.
The problem with the “why can’t LGBTQ people go to other agencies?” argument, Cooper said, is not only that it upholds inequality and exclusion and enforces cruel and crude stigmatization, but also, “We have no idea if agencies would seek government contracts now knowing they had a constitutional right to discriminate.”
Cooper said that although SCOTUS’ 6-3 majority was concerning, she hoped the Supreme Court justices would recognize the extremity of the case, and rule against CSS accordingly. If it doesn’t, prospective same-sex parents would be discouraged from applying to take in children, and children would lose out too.
The implications spread beyond the foster and adoptive care systems, said Cooper. If the Supreme Court says government service contractors have the right to discriminate based on a religious test, others—homeless shelters, food banks, after-school programs—might feel emboldened to follow.
The principle of religious freedom as a constitutional right to discriminate, could extend to housing and the practical meaning of marriage equality. “Religious liberty” could ultimately, if signed into law by states and the courts, be used to gut many hard-fought-for LGBTQ rights and equalities, Brogan-Kator said. It isn’t going away; the only unknown is how advanced a weapon it can become.
“She would serve us foster kids what she called ‘SOS’—Shit on a Stick”
“People don’t know how the foster system works, and what it is like to grow up in, so it’s important to share stories of what those experiences are,” Kristopher Sharp, 30, a program officer with Robert F. Kennedy Human Rights, told The Daily Beast. In his time in the system as a teenager, Sharp lived in 25 different homes all over Texas.
“In my experience, people just don’t want gay kids,” Sharp said. For him, the Supreme Court case reveals just how conservatively skewed the system is. “It is an industry traditionally run by religious groups. Who decides to be caregivers is already a conservative process. Think of people who voted for Trump. Oftentimes they feel they are doing the Lord’s work, or they are going to ‘fix’ the kids, to make them ‘better’—rather than opening their homes to affirm and love them.
“If the ruling goes against same-sex parents, I worry about the signal that gives to caregivers, that these people can’t be foster parents—and that it’s OK to treat LGBTQ kids in certain, bad ways.”
A lot of the families Sharp encountered were licensed by Christian and Catholic charities. One family who fostered him went to church twice on Sundays and twice during the week. The 4 foster kids were made to do heavy manual work, like digging a pond. “Her biological son was super-abusive to us. He hit us, his parents would disappear.
“We would come in from digging the pond, and they would be eating McDonald’s and Pizza Hut. The mother would serve us foster kids what she called ‘SOS’—Shit on a Stick—which was pieces of bread, with ground-up meat and a tomato. She put locks on the refrigerator so we couldn’t open it. It was not normal. I’m not saying all religious households were bad, but rather there are a lot of really conservative foster people. Also, a lot of people don’t realize foster care is a business. Parents are given money to keep foster kids.”
“I heard in the testimony last week this belief expressed that there should be less government regulation of these agencies,” Sharp said. “Nothing could be further from the truth. Oftentimes the homes are abusive, and not accepting of us. The foster care parents treat us badly, and there is little oversight.
“We need more regulation. People should be looking at this system, and how to improve and fix it. Before LGBTQ kids like me came into the system we have been abused and neglected, and we are put in homes that are sometimes more abusive and neglectful than the ones we have left.”
The Supreme Court is having the wrong debate, said Sharp. “That’s what is so scary. We know there are a lot of LGBTQ kids in this system. A lot of the parents are super-religious. We have to deal with the abuse and trauma in foster homes. If the Supreme Court gives agencies the permission to discriminate against LGBTQ folks, how will that trickle down into how these families treat LGBTQ kids? It is dangerous for us, and it makes no sense.”
Charles-Gallo, who is studying communications with an emphasis on women and gender studies at university, feels lucky to be able to use his experience to help others and wants to ultimately work for an LGBTQ advocacy organization, lobbying specifically for those in foster care.
Both VanDeVoort and Stafford are social workers and know how urgently homes are needed for children in foster and adoptive care. “Taxpayer money should not be able to be used to discriminate against anyone, and I worry about children not being able to be placed in loving homes because of discrimination.”
VanDeVoort grew up in a small, relatively religious community herself. Coming out in high school was difficult. Those who believe in God should be able to do so, she said, but not use their beliefs to “negatively impact” others.
She is “nervous” about how a conservative-dominated Supreme Court could rule, “and how it could affect families like mine. I worry that if my wife and I were getting ready now to have a family like the one we have now, with our four amazing children, we wouldn’t be able to do it. If the Supreme Court had ruled for CSS back then, I worry our children would not have been placed together with us. I can’t imagine life without my kids, and I can’t imagine what our children’s lives would be like without us in them.”
VanDeVoort and Stafford know there is a shortage of foster care parents in Iowa. “It breaks our hearts that there are kids out there who need loving homes and siblings who want to be together. My wife and I would love to provide opportunities for them, but if there is even a chance we have to go through that turmoil again I’m not sure that we, our kids, and our future kids, should have to deal with it.”
“My gut tells me nobody is going to be satisfied—neither us nor the other side.”
Kristopher Sharp wants to make clear that he had good experiences too when he was in foster care, like the schoolteacher who became a foster parent to give him a home. “It takes one good experience. Young people are the sum of what we know. If all you see are crazy people in your life, doing drugs and being abusive, it affects how you see the world. Having just one positive role model showing you what can work and be good does change you—even if that experience is so rare.”
Sharp was also a sex worker for a period when he was homeless. “I ended up getting HIV in the middle of it. Some johns pay you more if you don’t use protection. It’s the difference between 20 dollars and 60 dollars, and when you are homeless you do what you have to do.”
Sharp ended up getting an education and going to college and is determined to use his experience to help others. He believes strongly that the Supreme Court is focusing wrongly and narrowly not just on prospective parents, but on the needs of LGBTQ young people in the foster care system.
Brogan-Kator said anything that isn’t an affirmation of a lower court ruling in the city of Philadelphia’s favor would be a loss. “Then the question is how broad and extensive that loss is.”
Brogan-Kator feels the conservative justices may seek a middle way, not undermining LGBTQ equality but affirming CSS’ freedom of religion. “How they will do that will be interesting, and I don’t know how. My gut tells me nobody is going to be satisfied—neither us nor the other side. I think they will find a way to make both sides equally unhappy as they did in the case of Masterpiece Cakeshop, where they reaffirmed the right of states to have anti-discrimination laws that protect LGBTQ people, while finding a way to tell business-owners like Jack Phillips that ‘yeah, you don’t have to follow them.’”
It would be “a win,” Brogan-Kator said, if the justices ruled that an agency could say that they do not support same-sex marriage, but could not turn away qualified, loving same-sex couples from fostering.
Whatever happens, “religious freedom” as an anti-equality battering ram has a “long shelf life,” said Brogan-Kator. What was once meant in the First Amendment as an enshrining of the right to practice the faith of one’s choosing free from government interference has morphed into an all-purpose anti-LGBTQ weapon, aimed at diminishing marriage equality and the more recent Supreme Court victory, ruling that Title VII of the 1964 Civil Rights Act encompassed anti-LGBTQ discrimination.
Brogan-Kator hopes that there can be a “dialogue” between all sides about how to resolve the issues, but religious exercise cannot have “a free pass under the law. As long as we have a conservative Supreme Court, as a weapon it will be used liberally, and it will be a battle this entire time. We have the better argument and the better of the law, but at the end of the day the Supreme Court decides what the Constitution means.”
There was a telling moment during last week’s Supreme Court argument, Brogan-Kator said, when the justices were asked whether the pool of prospective parents reflect the demographics of the youth in foster care. The question was asked in relation to Catholic children, but it is also piercingly applicable to LGBTQ children and prospective LGBTQ parents, said Brogan-Kator, given that around 30 percent of children in care are LGBTQ. “The discrimination faced by LGBTQ youth is widespread, and we should never place a child with any agency that doesn’t respect their identity.”
The case before the Supreme Court frustrates Weston Charles-Gallo very personally.
“If someone is able to give a child a loving home, they should be able to. There are 400,000-plus kids in the foster care system, and some people want to turn away parents who want to provide loving and affirming homes to kids who want to be loved. It comes from a lack of understanding and fear of the unknown. To the justices, I would say, ‘Open your hearts and minds to something you are not familiar with. Same-sex couples are just as able to take care of children as straight couples. Take yourselves and ideology out of the situation, and think what is best for children.’”
Samantha Hutcherson Bannon feels the same. “This isn’t about the city of Philadelphia against religious people and religious organizations. This is about finding homes for kids. The idea of not allowing certain couples to foster when so many children need homes seems ridiculous.”
Bannon and her wife’s experience with Bethany Christian Services has put them off trying to foster. She is also struck by what a negative message to LGBTQ kids in the system a discriminatory ruling would transmit, “taking away the opportunity of being placed with a family that looks like them. I hope the justices would consider first and foremost we’re talking about utilizing tax dollars to allow discrimination towards families and children.”
“LGBTQ families are just as diverse and loving as heterosexual families,” Bannon added. “I hope we have the same opportunities to help children who need help. People should have their religious freedom. But we should not use our tax dollars to discriminate against LGBTQ people.”