first amendment, establishment clause, free exercise clause, in loco parentis, foster children, religion, separation of church and state


The New York State Constitution provides for the assignment of foster children to "an institution or agency governed by persons, or in the custody of a person, of the same religious persuasion as the child." It likewise empowers the state to reimburse foster care institutions for the expense of caring for the children. Plaintiffs, six children for whom guardians were appointed, sought a declaratory judgment that provisions of the New York State Constitution and statutes implementing these constitutional provisions violate the first, eighth, and fourteenth amendments of the United States Constitution. Defendants were public agencies and officials responsible for the administration of the child care system. A special three-judge federal court concluded that the New York program did not, on its face, violate the United States Constitution. Pursuant to a pre-trial order the issue before the court was defined as: "'[w]hether New York Social Services Law § 373(1), (2) and (5), New York State Constitution Article 6, § 32, Family Court Act § 116(a), New York Social Services Law § 153 and New York Constitution Article 7, § 8(2) violate the Establishment Clause of the First Amendment to the Constitution of the United States on their face . . . .'" The court recognized that "the issues now before [it] present a clash between the Establishment and Free Exercise Clauses of the First Amendment" and "ascertainment of the proper 'wall' between Church and State . . .in a given context is, as always, fraught with difficulties."' Balancing these competing claims of the first amendment, the court concluded that when the state acts in loco parentis it assumes the obligation of providing for the total well-being of children entrusted to its care, and may constitutionally provide funds to foster care facilities run by religious organizations which meet a child's religious needs.



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