Page 39 - CLT062821

OPINION JUNE 28, 2021 ■ 39

CSS. The court concluded that the city did not in foster care do not receive the harmful mes-
have a compelling interest in refusing to contract sage that the city permits discrimination against
with CSS, which sought only an accommodation their kind. The compelling interest is in prevent-
that would allow it to continue serving the chil- ing discrimination, including sexual orientation
dren in a manner consistent with its religious discrimination, which “deprives persons of their
beliefs, and not to impose those beliefs on anyone individual dignity and denies society the benefits
else. The city’s refusal to contract with CSS for the of wide participation in political, economic, and
provision of foster care services because it refused cultural life.” Moreover, the city has a compelling
to certify same-sex couples as foster parents did interest in meeting the need for more diverse fami-
not survive strict scrutiny and was held to violate lies to ensure that children are placed with families
the free exercise clause of the First Amendment. who are well matched to meet their needs.
Finally, the case is considered only a small win Furthermore, there is no less restrictive means
for religious conservatives and similarly a small of achieving the city’s interest in ensuring that con-
loss for the LGBTQ community because it dodged tract agencies welcome all potential prospective
many of the important issues, relying solely on the foster parents prohibiting discrimination based on
contract language providing exemptions. The de- characteristics unrelated to their ability to parent
cision is indeed narrower than it could have been, and the humiliation, frustration and embarrass-
and CSS prevailed largely due to the test applied in ment that it brings. The existence of family foster
light of that wording. care agencies that do not discriminate does not pre-
Nevertheless, I humbly disagree with the out- vent the stigma that would otherwise occur from
come and would have concluded that the city had allowing the creation of a public foster care system
a compelling interest in denying the exception— in which discrimination against same-sex couples
that is in requiring its contractors to comply with is tolerated, and families are denied access to the
its non-discrimination requirements, and further, full set of agency options available to different-sex
that these requirements are the least restrictive couples. And make no mistake—the consequences
means of furthering those interests. of this treatment of same-sex couples would fall di-
As a former Connecticut Commissioner of the rectly on children in the city’s foster care system,
Department of Children and Families, knowing denying them access to all available families, there-
how many children are in desperate need of lov- by sanctioning discrimination in the public child
ing foster homes, I can say with certainty that the welfare system and undermining the needs of chil-
city has a compelling interest in prohibiting its dren in care. In short, denying the exception to CSS
contract agencies from turning away or deterring satisfies strict scrutiny based on the city’s non-dis-
prospective families based on religious criteria that crimination requirements because the prevention
have no bearing on their ability to care for a child. of discrimination is a compelling interest, and the
Prohibiting government-contracted agencies from least restrictive means of enforcing that interest is
discriminating against same-sex couples and any to require compliance. I humbly dissent. ■
other potentially qualified foster parents who fail
to meet their religious criteria serves the city’s Joette Katz is a partner at Shipman & Goodwin,
critically important interest in caring for youth where she focuses her practice on business litiga-
who need loving foster homes. The city also has tion. She is a former Connecticut Supreme Court
a compelling interest in prohibiting discrimina- justice and DCF commissioner. She currently
tion against Philadelphia residents in government serves as chairperson for the Connecticut Law
programs, as well as ensuring that LGBTQ youth Tribune Editorial Board.

CONNECTICUT
Law Tribune