The Push to Permit Faith-Based Discrimination Seems Destined for Supreme Court
The number of states that have guaranteed the right of faith-based child welfare contractors to discriminate against parents—and in some cases children—grew from seven to nine in 2018. Oklahoma and Kansas joined seven other states in permitting these organizations to pass on serving same-sex couples, single people, or people of another faith looking to foster or adopt.
The text varies, but the gist is the same in each case. If a faith-based child welfare services contractor of the state wishes to pass on recruiting or training a foster or adoptive parent who is gay, or single, or a member of another religion, it can do so. And the state cannot move to end their contract for that reason.
In several of the nine states, and in plenty of others without these laws, the policy of the child welfare agency was already to permit its faith-based partners to be selective in what families they’d recruit and support. On the other side, 10 states have explicit protections against discrimination for all LGBTQ people.
These laws are the pre-emptive strike against such legal battles. To some extent, they pit against each other the two populations most likely to yield a badly-needed crop of new foster and adoptive homes in America: LGBTQ people, and those called to serve by faith. It’s worth noting that plenty of people fit in both categories.
There is a chance that this could all culminate in the biggest of all legal forums: a case in front of the U.S. Supreme Court, which has already begun to take on the broader subject of religious refusal in a nation that permits same-sex marriage.
In Dumont v. Lyon, the ACLU’s Michigan branch has sued the state’s child welfare agency, challenging the state’s “practice permitting state-funded child placement agencies to use religious criteria to turn away lesbian and gay prospective foster and adoptive parents.” The ACLU notes that this was already policy in Michigan before “the legislature passed a law in 2015 with the purpose of codifying that practice.”
The ACLU has not taken legal action in Texas, which in 2017 became the largest state to pass a faith-based bill. Yet.
“The bill is something we’re really concerned about,” said Kali Cohn, a staff attorney for ACLU of Texas. “We opposed it in the legislature, and we’re continuing to monitor it.”
Freedom Oklahoma, an LGBTQ rights organization based in Oklahoma City, has already begun its preparation to challenge the law.
“We’ve retained [law firm] Crow and Dunlevy, and Lambda Legal,” said Troy Stevenson, executive director. “We will bring a suit as soon as we can.”
Stevenson said he believes the laws are an unconstitutional “violation of the Establishment Clause and 14th Amendment,” referring to the section of the First Amendment that prohibits Congress from establishing a religion, and the amendment that lays out the rights of U.S. citizens.
The federal government has also been challenged on permitting discrimination by faith-based groups in its employ. Fatma Marouf and her wife, Bryn Esplin, who sought to foster an unaccompanied refugee minor, filed a lawsuit this year in U.S. District Court against the U.S. Conference of Catholic Bishops and the U.S. Department of Health and Human Services (HHS).
There has also been movement by Republicans in Congress to essentially enshrine faith-based discrimination into federal law. The Child Welfare Provider Inclusion Act would empower HHS to dock 15 percent of the child welfare funds for a state that takes “adverse action” against a provider that has declined to “facilitate or refer for a child welfare service that conflicts with, or under circumstances that conflict with, the provider’s sincerely held religious beliefs or moral convictions.”
The bill has been proposed for years by Sen. Mike Enzi (R-Wyo.) and Rep. Mike Kelly (R-Penn.). This year, Rep. Robert Aderholt (R-Ala.) attached it to the House Appropriations Committee bill to fund HHS for fiscal 2019, but it was stripped out of the spending bill before passage.
Should this progress up the legal ladder, the question will surely be about the appropriateness of such discrimination with the use of taxpayer dollars. Other faith-based entities have partnered with states on foster care and adoption without taking public money. For example, about half of Arkansas’ new foster parents are recruited by The CALL, an organization that will only work with Christian candidates.
“Why does Catholic Charities—which has more money than God, literally—why can’t they just do it without taking state dollars?” Stevenson said.