On May 3, the Oklahoma Legislature became the first to pass anti-LGBTQ legislation this year, followed closely by Kansas. Gov. Mary Fallin of Oklahoma, a Republican, signed that state’s license to discriminate bill into law late on a Friday afternoon, May 11. Kansas’ Republican Gov. Jeff Colyer is expected to sign their bill into law any day. Both bills were hurriedly pushed through at the end of the session in response to threats from certain child-placing agencies that they might leave the state if their “religious liberty” wasn’t protected. These bills, however, distort the meaning of our individual right to free exercise of religion without interference from the government. Instead, they use religion as an excuse for state-sanctioned discrimination that ultimately hurts the most vulnerable amongst us: foster children in out-of-home care.
The bills don’t explicitly target the LGBTQ community but are nonetheless directed at it. On their face, they address the criteria the state uses to license and contract with child-placing agencies that receive state and federal taxpayer dollars to carry out the state function of caring for children who are wards of the state—children who have been removed from their families because of abuse or neglect. The bills prohibit the state from making decisions based on the policies of the agencies if those policies are based on “religious or moral convictions.” (One has to wonder what could possibly be “moral” about leaving a child unplaced rather than placing them with a loving, qualified family.) They also purport to protect such agencies from civil actions that are based on acting in accordance with such convictions.
What these bills really do is permit child-placing agencies to disregard the polestar that guides child welfare policies—the best interests of the child—in favor of their own “deeply held religious beliefs,” including the belief that LGBTQ couples shouldn’t raise children. This isn’t just conjecture: When asked on the Oklahoma Senate floor for examples of the “deeply held religious beliefs” that the legislation would allow child-placing agencies to assert as a basis to deny placement of a foster child, the legislation’s author, Majority Leader Greg Treat, cited beliefs opposing “same-sex marriage.”
To be sure, the child welfare system is in crisis—the number of children in care keeps increasing, outstripping the available foster homes. Indeed, it is not a lack of service providers, but rather an insufficient number of foster and adoptive families that keeps so many children in foster care instead of loving homes. Laws of this type exacerbate the problem by creating barriers to qualified individuals and couples who wish to be foster and adoptive parents—not just LGBTQ individuals and couples, but also people of different faiths or unmarried individuals that do not meet a child welfare provider’s religious litmus test. We have already seen this happen; recently in South Carolina, a married different-sex Jewish couple was turned away by a taxpayer-funded Christian child welfare provider because the couple did not share the agency’s religious beliefs.
Children in the foster care system depend on lawmakers to protect them. To willingly turn a blind eye to any practice of an agency, religion-based or otherwise, that has the effect of limiting the number of available foster homes abrogates the state’s solemn obligation to these vulnerable youth.
Proponents of these bills justify their support by framing them as based on our constitutional commitment to religious liberty and as a prophylactic against lawsuits, all the while ignoring the very real contribution that LGBTQ people, as well as others that are subject to discrimination by these agencies, can and should play in solving the states’ child welfare crises. Let’s look at these points more closely.
Proponents claim that these bills protect religious freedom. For example, during the Oklahoma debate, Treat repeatedly said that the purpose of his bill was to allow child-placing agencies to be free from “government interference” to practice their religion in the service of these children. To be clear, this legislation is not about private faith-based agencies who facilitate private adoptions; such agencies are and will remain free to decide who to recruit as prospective parents based on whether they conform to the agency’s religious precepts. Instead, the agencies involved here, which have agreed to find foster homes for wards of the state, are performing a public function with taxpayer funds. As such, they have aligned themselves with state government—and its responsibility to serve its citizens without regard to religious belief—and are no longer merely individuals whose religious freedom is at issue.
In fact, the Establishment Clause of the First Amendment prohibits states from favoring certain religious beliefs over others (including nonbeliefs). This concept, traditionally called the wall of separation between church and state, requires strict government neutrality in matters of religion, prohibiting the state from entangling itself in religious issues or endorsing a religious position. As a consequence, the government cannot use taxpayer dollars to directly support religious entities. Last week in Oklahoma and Kansas, both legislatures ignored that constitutional principle by not merely allowing, but also requiring, taxpayer dollars to flow to agencies that while acting on behalf of the state, use those tax dollars to turn away qualified potential parents based on the agency’s religious convictions.
Just as the state itself could not use religious criteria to license a foster home without running afoul of the Establishment Clause, an agency acting on behalf of the state cannot use religious criteria to decide whether an applicant can serve as a foster parent. There are already two court cases challenging similar laws or practices (one in Michigan and one against the United States Office of Refugee Resettlement), and more are sure to come.
In short, these bills are not about individual religious liberty, though that is how they are packaged. They are about agencies that have chosen to perform a public function with taxpayer funds who nevertheless want to discriminate against LGBTQ people and others in a way the states themselves would never be permitted to do.
Protecting agencies from lawsuits
Proponents further suggest these bills are needed to “protect” these agencies from lawsuits. According to them, such protection will attract new agencies into the system and keep existing agencies from closing their doors because they would rather refuse to serve foster children than be forced by a court ruling to place them with same-sex couples. These claims are without substance. First, there is currently no civil rights statute in either state that would provide a basis for a suit asserting discrimination based on sexual orientation or gender identity.
Second, no statute can protect agencies that engage in an unconstitutional act. Finally, in the handful of states that have passed similar laws, there is no evidence whatsoever—whether actual or anecdotal—that a statute allowing taxpayer-funded child welfare providers to discriminate against otherwise qualified families will somehow increase the number of providers entering the system.
The role of the LGBTQ community
What state legislators have blatantly disregarded by passing these bills is that LGBTQ individuals and couples form an integral part of the adoption and foster care systems. Same-sex couples are six times more likely to foster children and four times more likely to adopt than different-sex couples, and an estimated 2 million LGBTQ adults nationwide are interested in adoption. In 2016, there were 437,465 children in foster care nationwide, and 117,794 of those were eligible and waiting for adoption. The LGBTQ community is a large and available resource for finding homes for these children. But statistics like those don’t seem to matter to these legislators, nor does the very real fact that it is a lack of homes that keeps kids in foster care and group homes, or worse—aging out of the system without ever finding that sense of family and permanency, which was the fate of over 17,000 foster youth in 2016.
Behind these bills is an underlying message: we don’t want LGBTQ people raising children; we believe they are unfit to be parents. There is no rational basis for this view; it is grounded only in bigotry and fear. The truth is just the opposite: Every major peer-reviewed study of children raised by same-sex couples have found that outcomes for such children are no different than outcomes for children raised by different-sex couples. And every major child welfare and mental health organization in the nation opposes legislation like the bills passed last week in Oklahoma and Kansas.
Sadly, there are more such bills to come. There is a cabal of extremist Christian-right organizations behind these bills and others targeting the rights of the LGBTQ community that will keep pushing its agenda, no matter how contrary it may be to good public policy.
The lawmakers who passed these bills would rather perpetuate discrimination than see these children live a fulfilling life with a same-sex couple or LGBTQ individual. While this is frustrating, disheartening, and infuriating to those who face discrimination, the most heartbreaking effect is that the impact falls on children who want nothing other than a safe and loving place to call home.