Faith-Based Laws and Foster Care: Destined for Supreme Court?

Two more states have joined the ranks of those that have acted legislatively to guarantee the right of faith-based child welfare contractors to discriminate against parents – and in some cases children – whose lifestyles do not comport with the religious views of the organization.

Before last Monday, there were seven states with such legislation already on the books, which include Alabama, North Dakota, South Dakota, Virginia, Mississippi, Michigan and Texas. Oklahoma and Kansas have since made it nine.

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. But some of those groups feared legal action in the wake of the U.S. Supreme Court’s 2015 ruling that same-sex marriage is the law of the land.

After Massachusetts passed a law requiring its providers to license any eligible couple, several Christian organizations stopped working with the state on foster care and adoption.

These laws are the preemptive strike against such legal battles. But Youth Services Insider sees a pretty decent chance that this could 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 now 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.”

Youth Services Insider logoThe 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 LBGTQ 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.

Should this progress up the legal ladder, the question will surely be the use of state 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.

Stevenson said Oklahoma Gov. Mary Fallin’s assurances that the bill was not discriminatory conjured images of America’s separate-but-equal era.

“She said DHS [Department of Human Services] will print a list of agencies that will serve anyone,” he said. “That reminded me of the Green Books from the civil rights era [The Negro Motorist Green Book plotted where black families would be served on major roadways]. It’s insulting, it’s something we did away with decades ago.”

Cohn said these child welfare laws are part of a broader effort to “push religious refusals” by some lobbyists and faith-based entities. “That is 100 percent the strategy.”

The legal test of the child welfare bills could come down to this: if some contractors discriminate but the system itself serves any interested and eligible party, does that constitute an unconstitutional denial?

In YSI’s humble opinion, a big factor here could be whether the functional outcome of these laws is for huge swaths of states to be served only by providers who are free and willing to discriminate. If all of foster care and adoption contractors serving a big region of Oklahoma are faith-based, and no provider within 200 miles would consider a gay couple, there is certainly a case to be made that this law has deprived them of their rights.

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