An Oregon mother of five has filed a federal lawsuit claiming she faced religious discrimination while seeking to adopt children through the state’s foster care program after disclosing that she was unwilling to affirm LGBTQ+ identities.
During her application process to become an adoptive parent, conservative Christian Jessica Bates told her caseworker that her religious convictions prevented her from supporting “children whose preferred pronouns & identity don’t match their biological sex.” She said if a child in her home was transgender, she could love and accept them as they are, but “would not encourage them in this behavior.”
Oregon requires all foster and adoptive parents to “respect, accept and support the race, ethnicity, cultural identities, national origin, immigration status, sexual orientation, gender identity, gender expression, disabilities, spiritual beliefs, and socioeconomic status” of youth in their care.
Bates was denied licensure as a foster or adoptive parent based on her refusal to comply with this policy, the suit states.
The lawsuit refers to the policy as an “ideological litmus test” and claims it violates the Constitution’s First and 14th amendments and the Civil Rights Act by penalizing Bates “for her religious views” and “compels her to speak words that violate her beliefs.”
Bates’ case is the latest iteration of a yearslong effort to carve out religious exemptions to the inclusion of the LGBTQ+ community in foster care and adoption, and the support of LGBTQ+ youth in foster care. That general expectation was far from a given until 2015, when the Supreme Court’s decision in Obergefell v. Hodges made same-sex marriage legal in every state.
In 2016, the Obama administration’s Department of Health and Human Services aimed to protect the LGBTQ+ community’s right to foster and adopt by tying federal child welfare funding to an anti-discrimination policy barring agencies from denying services based on gender identity or sexual orientation. This walled off faith-based providers who refused to work with LGBTQ+ foster and adoptive parents from receiving federal funds.
In 2018, the Trump administration granted a waiver to South Carolina to allow federal funds for Miracle Hill, which only recruits Christian foster homes, and any other faith-based agency in the state “that uses similar religious criteria.” In 2019, HHS under Trump rescinded Obama’s 2016 directive completely.
Texas and 10 other states have passed legislation permitting faith-based agencies to refuse to work with prospective parents whose lifestyle runs counter to their religious beliefs. These laws allow discrimination not just against LGBTQ+ people, but also those from other faiths, single parents, or anyone who doesn’t meet the religious groups’ definition of a good parent.
But in other states, state law kept in place anti-discrimination rules that required faith-based organizations to work with LGBTQ+ families or forfeit state contracts. In some cases, legal battles ensued — including at least one led by the massive right-wing legal group representing Bates in her case, Arizona-based Alliance Defending Freedom.
In 2018, Alliance Defending Freedom sued New York on behalf of the faith-based adoption agency New Hope Family Services, pushing back against directives to permit same-sex and unmarried couples to adopt.
In 2020, the issue made it all the way to the U.S. Supreme Court. In Fulton v. City of Philadelphia, Catholic Social Services argued that faith-based discrimination was protected by the First Amendment. In a narrowly tailored unanimous decision, the justices ruled that Philadelphia’s refusal to contract with the organization violated their constitutional right because the city’s child welfare commissioner had the right to grant a waiver allowing Catholic Social Services to discriminate against LGBTQ+ people, but chose not to do so.
The Free Exercise Clause of the First Amendment, which is at the heart of the Fulton decision, is also invoked in the Oregon lawsuit. Bates’ legal team has filed for a preliminary injunction to stop Oregon from using the policy to bar Bates and other religious applicants from fostering and adopting.