Religious Freedom and LGBT Adoption Laws Face Off

While the Supreme Court’s 2015 ruling in the case of Obergefell v. Hodges legalized same-sex marriage and gave same-sex couples the same rights as heterosexual couples, the lesbian, gay, bisexual, and transgender (LGBT) community continues to face challenges that heterosexual families do not. Among the most contested issues is whether foster care agencies can deny placing children based on the foster parents’ sexual orientation.

LGBT Adoption Laws

National LGBT Adoption Laws

Two opposing bills have been sent to Congress to determine whether faith-based foster care agencies are required to place children with families who don’t share their religious beliefs. LGBT rights advocates have proposed the Every Child Deserves a Family Act. It would prevent agencies receiving federal funding from denying foster care placements or adoption to members of the LGBT community and allow the Department of Health and Human Services (HHS) to withhold Title IV funding to states that don’t comply. The other bill in Congress proposed by religious advocates, the Child Welfare Provider Inclusion Act, would protect agencies from losing state funding for only providing service to those who share their religious beliefs.

Cathryn Oakley, the Human Rights Campaign’s State Legislative Director and supporter of the Every Child Deserves a Family Act, has stated that “allowing these individuals to be excluded from the pool of prospective parents for discriminatory reasons is harmful to children in care — and leads to taxpayers footing the bill for the consequences of this discrimination.” Rep. Ileana Ros-Lehtinen (R-FLA.) found that, “same-sex couples are four times more likely to foster and six times more likely to adopt than opposite-sex couples. They are also more likely to adopt older children and children with disabilities – children who have the most difficulty finding forever homes.” Advocates for protective LGBT adoption laws argue that denying parents a child based on their sexual orientation would increase the time children spend waiting to be adopted.

While the Every Child Deserves a Family Act is heavily backed by the Human Rights Campaign, the Child Welfare Provider Inclusion Act is supported by the Catholic Church. Three bishops who hold chairs on U.S. Conference of Catholic Bishops’ committees wrote a letter supporting the bill in which they stated, “The Inclusion Act protects the freedom of all child welfare providers by ensuring they will not be discriminated against by the government because of their religious beliefs or moral convictions.” Supporters of the act argue that it would help maintain a diversity of providers for foster and adoptive parents to choose from and protect faith-based agencies from having to close or provide services that go against their beliefs.

Thomas Atwood, the former President of the National Council for Adoption, expressed his concerns if the Child Welfare Provider Inclusion Act does not pass. “If all faith-based agencies closed … the adoption and child welfare field would be decimated, depriving thousands of children [of opportunities to] grow up in families,” Atwood said.

Supporters of both bills have turned to the U.S. Constitution to defend their side of the battle. Those in favor of the Every Child Deserves a Family Act argue that it is needed to further bolster the message of the 14th Amendment, which prevents states from making laws that limit the rights of United States citizens, by including language specifically protecting the LGBT community. On the other side, backers of the Child Welfare Provider Inclusion Act argue the bill would be a safeguard to the religious liberty that is protected by the First Amendment.

Statewide LGBT Adoption Laws

While these bills are being fought for on a federal level, many states have taken to handling these issues themselves. In 2006, Catholic Charities of Boston opted to end offering adoption services rather than be legally obligated to place children with LGBT families after Massachusetts legalized same-sex marriage and put in place laws preventing discrimination against the LGBT community. Massachusetts is not the only state with LGBT adoption laws in place that prohibit same-sex families from being denied an adoption. California, New Jersey, Washington D.C and several other states have laws that prevent discrimination based on a person’s sexual orientation.

In 2017, Texas passed the Freedom to Serve Children Act which protects foster care agencies from legal retaliation for making decisions regarding a child in care based on the organization’s religious affiliation. The bill allows these agencies to refuse services to foster parents and children who do not practice similar religious beliefs. However, it also requires them to refer the individual or family to another agency that can help. Texas joined North Dakota, Michigan, Virginia and three other states with comparable laws protecting religious freedom. In Michigan, agencies are allowed to operate under the principles of their faith in order to ensure that half of the state’s foster care and adoption services will not have to close or go against their beliefs.

LGBT Adoption Laws in New Jersey

New Jersey has been at the forefront of promoting LGBT rights. In 2009, New Jersey’s Department of Children and Families signed the All Children-All Families’ (AC-AF) Pledge of Commitment. By signing the pledge, they promised to welcome, support and engage all families, regardless of sexual orientation or cultural background. AC-AF is a nationwide initiative created by the Human Rights Campaign’s (HRC) Family Project to recruit new foster and adoptive families by educating the LGBT community about foster care. The program is also aimed at promoting LGBT adoption laws that protect the rights of same-sex parents. In 2011, New Jersey’s DCF became the first state agency to earn a Seal of Recognition from the HRC AC-AF Initiative.

To learn more about the Every Child Deserves a Family Act and the Child Welfare Provider Inclusion Act, click here.

To learn more about LGBT adoption in New Jersey, click here and here.

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