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Joshua Z. Rokach

The cloud over US Jewish child placement

Two recent US Supreme Court cases and a new lawsuit in Massachusetts cast doubt on the role of religion in US child placement.  State laws operate under the principle of the best interest of the child. In applying that standard, governments bend over backward to ensure placement  in settings of the same religion as the child.

For example, Section 116 of the New York Family Court Act provides that, unless contrary to the expressed wishes of the birth parents, or mother, as the case may be, religion prevails “if there is a proper or suitable person of the same . . .  faith or persuasion as that of the child available . . . or if there is a duly authorized association, agency, society or institution under the control of persons of the same . . .  faith or persuasion as that of the child . . . available and willing to assume the responsibility  ,  . . .”

Growing up in Jewish environments, Jewish children develop their identities and the Jewish people continue to thrive.

Viewed another way, the law “discriminates” against non-Jews. Until now, the courts properly brushed aside such considerations.  Child placement should benefit the child, to the exclusion of all else.  However, earlier this year, ironically in a case upholding a federal law giving preference to Native American tribes and families in the adoption of Native American children, the US Supreme Court opened the door to overthrow religious preferences.

Haaland v. Brackeen, 142 S. Ct 1205 (2023) upheld the Indian Child Welfare Act, but called into question laws such as section 116 of the New York Family Court Act. Atoning for a century of mistreatment, the Indian Child Welfare Act requires placement with a family of the child’s tribe, or the tribe itself, or any Native American family or tribe, ahead of outsiders.  The wishes of the parents don’t count.  The legislative history establishes that Congress enacted the law to maintain the childrens’ religious and cultural identity, as with New York..

Opponents argued that Congress violated the Constitution.  The Court, in a 7-2 vote, disagreed. However, the discussion concerned the power of Congress to pass the law – under the Commerce Clause (governing US relations with “the Indian tribes”) and as against the states, whose laws cover child placement.

The Court explicitly did not consider whether, in pushing Native Americans to the head of the line, the Act violated the Equal Protection Clause of the 14th Amendment, prohibiting unjust discrimination.  Justice Amy Coney Barrett wrote that parties who could have raised the issue in the district court failed to do so.  The Court, in effect. invited a challenge. .

The decision invalidating affirmative action drew the roadmap.   Students for Fair Admissions, Inc. v.. President and Fellows of Harvard College, ___  S.Ct.  ___ (2023) declared affirmative action in education violated the Equal Protection Clause. The policy took the race of applicants into account, though not as a quota. The Supreme Court had allowed it in the interest of diversity, to prepare young people for life in modern-day America.

The Court set out a three-step analysis: the program had to serve a compelling societal interest, the colleges had to tailor the program narrowly and, in the case of race, the program had to end.  Chief Justice John Roberts and five of his colleagues pretended not to know what diversity meant.  They found that by broadening affirmative action beyond racism’s victims, colleges failed the second test and no one could tell when the program would cease.

Schools could ask in individual essays how adversity, including racial discrimination, affected the candidate and weigh that in admission decisions.  However, the new mechanism could not produce the same racial ratio as now.

Unlike with Native American cultures, governments did not seek to eradicate Judaism. The courts would probably find a religious upbringing a compelling  state interest.  The Supreme Court said as much in aid to education cases.  However, case-by-case consideration may well prove problematic.  Family courts would have to decide, given the child’s life to date, how important a role religion will play in adulthood.  The courts could not rule that every child whose parents do not object needs a religious home.

Finally, states may have to give priority to the religious rights of Gentile prospective custodians.  Earlier this month, a Catholic couple asserted their religious liberty as a reason to override Massachusetts’s rejection of their becoming foster parents.  Burke v. Walsh (Aug. 7, 2023). The state decided that the Burkes  could not provide for the best interests of the child.  The couple said they would care for a child they considered a sinner, even if they loved him as an individual. However, that setup would hurt the child psychologically.

If successful, the case would effectively end religious preference, great harm of the Jewish people.  Defendants have until late September to weigh in.. Root for them.

About the Author
Joshua Z. Rokach is a retired appellate lawyer and a graduate of Yale Law School.
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