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How children get caught in the clash over LGBT and religious rights

POSTED: March 2, 2018 11:14 a.m.
Kelsey Dallas/

Increasingly, America's adoption and foster care systems are affected by the clash between religious freedom protections and LGBT nondiscrimination law.

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The population of children in need of new homes through foster care or adoption is large and growing. But so are the obstacles that stand in their way.

The opioid epidemic, funding challenges and a tangle of regulations all complicate efforts to connect children with interested families, according to child welfare experts. Increasingly, so do clashes between faith-based adoption agencies and LGBT couples.

"We are seeing, at this moment, the leading edge of a culture war. And we've seen three skirmishes in the last week," said Robin Fretwell Wilson, director of the family law and policy program at the University of Illinois College of Law, during a Feb. 26 panel on foster care at the American Enterprise Institute.

Wilson was referring to recent lawsuits and legislation related to faith-based adoption agencies in Texas, South Carolina and Georgia. A lesbian couple sued the federal government and Catholic Charities of Forth Worth on Feb. 20 for the right to foster refugee children. The South Carolina Department of Social Services threatened to stop working with one agency last month because of its religious convictions. And the Georgia Senate passed a bill on Feb. 23 meant to protect faith-based agencies from being sued by the couples they don't want to serve.

It's not unusual for policy makers to use the foster care and adoption system to push unrelated agendas, according to Naomi Schaefer Riley, who moderated the American Enterprise Institute panel. Legislators pass regulations that send a message about family size or gun control, such as a Michigan law that prevents foster parents from carrying concealed weapons.

"Across the political spectrum, people use child welfare rules to fight battles they want to fight about other things," she said.

However, battles over LGBT discrimination verses the religious freedom of faith-based agencies may have more serious consequences, since those agencies are essential to foster care and adoption services, said Emilie Kao, director of The Heritage Foundation's Center for Religion and Civil Society. In some states, they represent a quarter of adoption service providers.

Moving forward, lawmakers must find a way to accommodate both LGBT couples who want to adopt and the faith-based agencies caring for vulnerable children, Wilson said.

"Right now, in most of the country, we affirm one or the other," she said.

Trouble brewing

For decades, faith-based adoption agencies avoided conflict with the LGBT community by serving only married couples. That became impossible when states started legalizing same-sex marriage, Wilson noted.

"You could see then that adoption was going to be an issue," she said.

Beginning in 2006, branches of Catholic Charities closed in Boston, Washington, D.C., and Illinois, because they were unwilling to serve LGBT couples or unable to operate without state funds. LDS Family Services stopped coordinating adoptions in June 2014, shifting its attention to adoption-related counseling.

"In the name of tolerance, we're not being tolerated," said Bishop Thomas Paprockie of the Diocese of Springfield, Illinois, in 2011, according to the U.S. Conference of Catholic Bishops. Catholic Charities serves only married couples and defines marriage as between one man and one woman.

These closures frustrated many religious freedom and child welfare advocates, who worried about whether other agencies would expand to fill in the gaps.

"They made everybody worse off by reducing the resources available in a state to work on adoption," wrote Doug Laycock, a law professor at the University of Virginia, in an email.

Secular agencies often can't replicate the unique appeal faith-based agencies hold for some birth moms and families, Kao said.

"There's a faith element in many people's adoption-related decisions," she said.

But LGBT rights activists reject the idea that public money should support agencies that won't serve every member of the public.

"Using religion as an excuse, federal taxpayer dollars are being used to discriminate," said Jamie Gliksberg, a staff attorney with Lambda Legal who is working on the Texas lesbian couple's case, to CNN.

In response to early closures, Wilson and others began working to keep faith-based agencies open in states ready to legalize same-sex marriage, with limited success. They eased tensions by offering agencies exemptions to nondiscrimination law at the same time as creating new rights for the LGBT community, including the right to marry.

"It was a way to take down the temperature of the debate," she said.

But the temperature rose again when the Supreme Court legalized same-sex marriage nationally in June 2015, and it hasn't dropped since.

Current battles

The Supreme Court's marriage ruling brought compromise efforts to a screeching halt, according to religious freedom experts. Adoption laws passed since then have been one-sided, centered on protecting either LGBT couples or faith groups, but not both.

"The gay-rights side wants to stamp out all exemptions," Laycock said. "And the religious side wants exemptions without regard to whether the services are available elsewhere."

New laws "are delivering win-lose answers," Wilson said during the recent panel discussion.

For example, SB375, which the Georgia Senate just passed, only protects faith-based adoption agencies. It would allow them to refuse to work with same-sex couples for religious reasons without also guaranteeing that same-sex couples are eventually matched with an agency willing to work with them.

"What's happening with this new raft of laws is they're saying faith-based agencies can do this, but not giving any new rights" to the LGBT community, Wilson said.

New laws are also problematic if they create controversy where it doesn't exist, noted Maggie Garrett, legislative director for Americans United for the Separation of Church and State. Faith-based agencies weren't vulnerable to legal action in Georgia because there's no state-wide nondiscrimination law.

"These agencies have been working in Georgia for a long time without a problem. I'm not sure why we need this bill," she said.

In general, legislators need to refocus their efforts on the children in need of homes, rather than broader culture war battles over sexual orientation and religious morality, said Wilson, who was adopted as a child.

"We're not managing those moments of ugliness," she said. "We're not matching people with agencies who want to serve them."

Searching for solutions

Wilson's presentation at the American Enterprise Institute was a call to action. She displayed data on the many ways states regulate faith-based adoption agencies and said something needs to change.

"This map shows that the United States has become a mess of laws working in different directions," she said. "You can see litigation brewing just by looking at it."

She's been meeting with leaders across the political spectrum to drum up support for a new approach to adoption and foster care. Wilson wants the system to function like the current approach to early childhood education programs, like Head Start, which gives public money directly to families and allows them to choose where to spend it.

"Our system is picking winners and losers," she said. "We should place families in the driver's seat."

Unsurprisingly, many obstacles stand in the way of her efforts, including the trend of passing lopsided protections for faith-related agencies in conservative states and lawsuits filed by LGBT rights advocates.

"There are definitely some parties who object to what (Wilson) is suggesting," said Riley, who is a visiting fellow with the American Enterprise Institute. Some believe that what faith-based agencies are doing is discrimination "and that discrimination should be stamped out wherever it is."

However, Riley added that interest in finding a solution is high, especially since the lives of a growing number of children are at stake. The number of children in foster care increased by more than 40,000 from 2012 to 2016, from 396,966 to 437,465, according to the U.S. Department of Health and Human Services.

"It would be great for the sake of the children in the system to reach some kind of compromise here," Riley said.

Wilson acknowledges that saving adoption and foster care services from current culture war battles won't be easy. But she says events like the recent panel give her hope.

"I had I don't know how many people come up to me at the end and thank me," she said. "That's where my optimism comes from."
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