Smith’s Last Stand? Free Exercise and Foster Care Exceptionalism

The Article explains why the constitutional path to victory by religious foster care agencies that seek to place conditions in accepting foster parents, including Catholic Social Services in Fulton v. City of Philadelphia, should be one lit by rights of children, which the agencies should have standing to assert, rather than any rights of their own.  Courts should dismiss religious foster-care agencies’ First Amendment claims as simply inapposite, a category error, because the state is not constrained by First Amendment rights of third parties when acting in the fiduciary capacity that parens patriae authority entails.  It should also recognize, however, that children have Fourth and Fourteenth Amendment rights against the government’s seizing them and then treating them as distributable goods whose fate is influenced by solicitude for the sentiments and equality claims of aspiring foster parents.