UO prof's amicus brief is part of Supreme Court foster care case

U.S. Supreme Court justices are benefitting from the research and expertise of a University of Oregon professor as they consider a major case in this fall's docket. 

History professor Ellen Herman got the call from the American Civil Liberties Union last spring, asking her to write an amicus brief on behalf of the city of Philadelphia for an upcoming Supreme Court case. The case, Fulton v. City of Philadelphia, centers around whether a Catholic agency that excludes married gay couples from consideration as foster parents should be removed from the city's foster care system.

An amicus brief is a document provided to the court that provides relevant information and expert knowledge generally supporting one side's argument. In this case, Herman and her two co-authors, historians of child welfare Michael Grossberg at Indiana University and Catherine Rymph at the University of Missouri, provided a history of foster care and the long and complex involvement of religious entities in the provision of services to vulnerable children.

Ellen Herman They detailed how, since colonial times, the government has been involved with regulating sectarian and other private foster care organizations. Faith communities have delivered significant services. They have also been biased in favor of foster children and prospective foster parents that share their religious views, Herman said.

"Part of the role of the state is to make sure that doesn't happen in the provision of public services," Herman said. "The question is whether taxpayers should pay for a scheme of religious preference."

The 22-page brief Herman and her colleagues submitted didn't leave out the more unsavory roles the state has played in foster care. While state action and government policy has tried to shield children from discrimination, Herman said, especially since World War II, the state itself has discriminated, notably in the case of policies that perpetuated Jim Crow segregation and deliberately separated Native American children from their families. 

This wasn't Herman's first amicus brief. In 2008, she began working with a group of legal scholars and other historians, submitting amicus briefs in support of the state-level same-sex marriage cases as they moved through the federal circuit courts.

That culminated in submitting a brief for Obergefell v. Hodges, the landmark 2015 Supreme Court case that requires states to legally recognize and license same-sex marriage. Herman and her co-authors' brief was cited in Justice Anthony Kennedy's majority opinion.

Arguments in Fulton v. City of Philadelphia, the first major case in which newly appointed justice Amy Coney Barrett participated, concluded Nov. 4. Considering how the makeup of the court has changed since she was first approached about writing the amicus brief, Herman is not optimistic.

"I would be amazed if they didn't take the side of Catholic Social Services," she said. 

However, Herman feels a responsibility to provide historical information to the court regardless of the outcome. She views it as a public service.

"I do these things because I care about making what I have learned accessible, not just in the form of education to students and scholars, but also to legislators and judges," Herman said. "Having good, nuanced history to call upon, not just some bullet points, is important to public policymakers. And it should be."

By Abbie Stillie, Wayne Morse Center for Law and Politics