Jeremy Ross (University of Virginia) has recently posted to SSRN his paper, Fulton, Foster Care, and Free Exercise. Here is the abstract:
This paper analyzes the legal prospects of per se blanket bans on fostering by religious applicants who refuse to affirm LGBTQ identity, arguing that these bans are highly likely to be declared unconstitutional under existing free exercise precedent. To undertake this analysis, this paper outlines and engages with the implications of Fulton v. City of Philadelphia’s strengthening and subsequent centering in free exercise analysis of the individualized assessment exception from Employment Division v. Smith. This paper then details the pre-Fulton district court decision of Blais v. Hunter, whose facts are highly similar to the recently adjudicated cases of Burke v. Walsh and Bates v. Pakseresht, concluding that per se bans on foster applicants who refuse to affirm LGBTQ identity were and continue to be disfavored both before and after Fulton.
This paper concludes that per se prohibitions on fostering by those who engage in non-affirmation will be difficult to justify under the free exercise strict scrutiny standard reinvigorated in Fulton and other recent cases. Likewise, this paper hypothesizes various cases which a state may face in its efforts to maintain and act on anti-discrimination provisions which may burden religious liberty and theorizes how state foster care agencies may even be able to uphold these policies against strict scrutiny analysis. Finally, this paper goes beyond affirmation requirements to the more general issue of the range of state power to dictate lifestyle choices, beliefs, conduct, and speech through the foster system. It concludes that state foster agencies will have to engage in a multi-factor balancing analysis that weighs concerns about religious lifestyle choices of applicants against the many other demands imposed by the core mission of foster care, which is always to achieve the best outcomes for needy children.