CHICAGO - Catholic Charities policy of providing state-funded adoption and foster care services in a fashion that excludes same sex couples does significant harm to children in the custody of the Department of Children and Family Services (DCFS) and discriminates against same-sex couples who desire to act as foster or adoptive parents.  These arguments are the focal point of a filing by the American Civil Liberties Union of Illinois, which moved late Friday (July 29, 2011) to intervene in a case brought by four Catholic Charities agencies (from Joliet, Springfield, Peoria and Belleville).

The ACLU of Illinois is seeking to intervene in the case on behalf of all children under the care of DCFS, children who already are clients of the ACLU in a two-decade old federal lawsuit that is designed to improve conditions for children under the care of DCFS.  The ACLU’s filing on Friday noted that both the federal constitution and the consent decree in the federal case (known as B.H. v. McEwen) requires the State of Illinois to make all decisions with regard to children in DCFS care solely on the basis of the “best interests of the child” and not the religious beliefs of a private foster agency. “Best interests”, according to experts in social welfare policy, require the State to consider only how a placement affects the child--whether the unique skills and characteristics of the potential parent or parents’ best fit the needs of the child resulting in a safe, loving and secure home for the child. These Catholic Charities agencies, who accept State funds to act on behalf of DCFS in placing children, seeks judicial authority to elevate their religious views about homosexuality and marriage over the best interests of the children under their care.

In response to Catholic Charities’ claim that it has a religious right to discriminate, the interveners assert that Catholic Charities are performing a “state function” when they choose homes for DCFS state wards and process prospective foster parents for state licensing.

Under the Constitution, the government has no right to refuse to place children who are state wards in the care of fully qualified foster homes on the basis of a religious objection. The constitutional duty of the state not to exclude homes based on religious objections continues even if the State has contracted with an agency to provide those services. Therefore, when Catholic Charities contracts with DCFS to provide foster care and adoption services for state wards, they cannot perform these functions in a manner that is in conflict with the “best interests” of the child, notwithstanding their religious views.

“This case is about our clients – the children under the care of DCFS,” said Benjamin Wolf, associate legal director of the ACLU of Illinois.   “These are among the most vulnerable children in our state.  They have been subject to abuse and neglect.   The only thing that should matter is what is best for these children, not the ideological or religious views of an agency acting on behalf of the State of Illinois.”

Joining the motion to intervene is Katherine Weseman and Sarah Kiddle, a couple from Champaign who recently entered into a civil union and hope in the future to provide foster care for a DCFS ward and eventually adopt such a child. Because Catholic Charities manages the majority of DCFS cases in their community, Ms. Weseman and Ms. Kiddle know that the group’s policy would be a barrier to their ability to act as foster or adoptive parents. Again, this exclusion is based on the views of Catholic Charities – without any regard for Illinois law (that precludes such exclusion) or the qualifications of Ms. Weseman and Ms. Kiddle.

“Illinois law says that Catholic Charities cannot discriminate against our clients based on their sexual orientation and because they have a civil union rather than being able to marry,” said John Knight, director of the Lesbian, Gay, Bisexual and Transgender Project of the ACLU of Illinois. “But they are asking the court to authorize such discrimination.   This is not tolerable in an inclusive society. It harms children by limiting the pool of potential adoptive parents and harms our clients – basically telling them that they are not capable of parenting solely because they are lesbians.”

Every major national organization devoted to children’s health and welfare – including the American Academy of Pediatrics, the American Psychological Association and the Child Welfare League of America – have issued policy statements based on more than 25 years of academic research finding that lesbians and gay men are just as qualified to parent and just as capable of providing safe and loving homes as heterosexual couples. Children are harmed when highly-qualified prospective parents are excluded from serving as adoptive or foster parents solely because of their sexual orientation.

The ACLU also takes issue with the assertion that the possibility of disruption for children if Catholic Charities withdraws from providing services on behalf of DCFS trumps the constitutional and legal issues involved, as well as the best interests of children. The ACLU notes that this situation is not unique.  Catholic Charities already has withdrawn from provision of adoptive and foster care services in the Rockford area and the entirety of Cook County.  Other, secular agencies stepped up and met the needs of children in the care of DCFS in those areas. The same can happen in the areas at issue in this case.

“Catholic Charities is entitled to hold its religious beliefs,” added Harvey Grossman, legal director of the ACLU of Illinois. “But those religious beliefs simply cannot be a factor when the agency is acting as a social service agency on behalf of the State.”

The case in which the ACLU is seeking to intervene is Catholic Charities v. State of Illinois. It is being heard in the courtroom of Judge John Schmidt in Sangamon County.

The ACLU of Illinois is being assisted in this case by Heidi Dalenberg and Michael Showalter of Schiff Hardin LLP in Chicago and Donald M. Craven of Springfield.