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Article
KIDS ARE NOT CAKES: A CHILDREN’S RIGHTS PERSPECTIVE ON FULTON V. CITY OF PHILADELPHIA
Cumberland Law Review (2022)
  • David M. Smolin
Abstract
In Fulton v. City of Philadelphia the United States Supreme Court ruled unanimously that the City of Philadelphia violated the Free Exercise Clause of the First Amendment by excluding the long-term participation of Catholic Social Services (CSS) in certifying foster parents.  The conflict occurred when the City realized that CSS was unwilling to certify same-sex married couples as foster parents.  No same-sex married couple had ever been turned away by CSS and CSS would have referred such a couple to the many agencies willing to certify and support same-sex married couples as foster parents.  The multiple opinions of the Justices focused primarily on the question of whether the Court should overrule Employment Division v. Smith, and hence focused primarily on adult conflicts regarding religious liberty.  This article concentrates on the implications of Fulton for foster children, children’s rights, and foster care systems.   The title of this article, “Kids are not Cakes,” is meant as a reminder that Fulton and other disputes regarding children cannot be properly analogized to conflicts among adults about equal access to goods and services.  “Cakes” of course refers to the Masterpiece Cakeshop LTD decision concerning a baker who refused to create a wedding cake for a same-sex couple based on his religious beliefs concerning marriage.   The article maintains that foster care systems and children should not be viewed through the lens of public accommodations laws, as such commodifies children and improperly views the purpose of foster care systems as serving adult desires to access unrelated children.   The article addresses in detail the impact on foster children of conflicts such as those which occurred between the City of Philadelphia and CSS.
Keywords
  • Foster Care,
  • Religious Liberty,
  • LGBTQ+ Rights and Equality,
  • Children's Rights,
  • Constitutional Law,
  • Fulton v. City of Philadelphia
Publication Date
Spring May, 2022
Publisher Statement
Pending publication, Vol. 52, No. 1, Cumberland Law Review (2022).
Citation Information
David M. Smolin, Kids are not Cakes: A Children's Rights Perspective on Fulton v. City of Philadelphia, 52 Cumberland Law Review 79 (2022).