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Explainer: What’s going on with faith-based adoption agencies? And what will happen next?

SHARE Explainer: What’s going on with faith-based adoption agencies? And what will happen next?

SALT LAKE CITY — Four years ago, the Supreme Court said LGBTQ couples could marry in every state. Did it also give them the right to adopt from any agency?

That question plagues officials across the country, who must decide whether faith-based adoption agencies that refuse to serve same-sex couples should still be allowed to partner with the government to place kids in new homes. LGBTQ and religious freedom rights advocates clash over what's best for prospective parents and vulnerable children.

"How do we ensure that everybody's allowed to foster and adopt? How do we also ensure there's space for a diverse array of foster care and adoption agencies? That's what we're dealing with now," said Nick Reaves, counsel for the Becket Fund for Religious Liberty, a religious freedom-focused law firm that's been involved in multiple adoption cases.

Each month seems to bring more news of lawsuits and legislation related to adoptions. Last month, Axios reported that the Trump administration will soon change federal policy to allow faith-based foster care or adoption agencies to receive public money even if they won't serve LGBTQ couples for religious reasons.

It's hard to keep up with the ongoing conflict, even if you want to. The Deseret News is here to help with an overview of key debates playing out across the country. Catch up on what's happened over the last few years and learn what to expect next.

Janice Kopper, of Wichita, Kan., right, hugs her daughter, Ethel, as they follow testimony against a bill designed to protect faith-based adoption agencies from being faced to place children in same-sex households, Wednesday, March 21, 2018, at the Stateh

Janice Kopper, of Wichita, Kan., right, hugs her daughter, Ethel, as they follow testimony against a bill designed to protect faith-based adoption agencies from being faced to place children in same-sex households, Wednesday, March 21, 2018, at the Statehouse in Topeka, Kan. Critics like Kopper, who has adopted seven children along with her wife, contend the bill would allow discrimination against LGBT couples.

Mitchell Willetts, Associated Press

How did adoption battles begin?

It's not new for some faith-based agencies to work with only married, heterosexual couples. Many conservative religions teach that marriage should be reserved for unions of one man and one woman and that households led by same-sex couples are not a healthy environment for kids.

It is relatively new for this policy to lead to discrimination lawsuits. Before states began legalizing same-sex marriage, faith-based agencies could turn away members of the LGBTQ community by working only with legally married couples, who were all heterosexual.

About 15 years ago, that all changed. When Massachusetts legalized same-sex marriage in 2003, officials told faith-based agencies they needed to work with the LGBTQ community or lose their licenses. Catholic Charities of Boston chose to end its foster care and adoption services rather than violate Catholic social teachings.

In lots of places, if you’re not Christian or the right kind of Christian, you don’t have the same opportunities to provide care for a child in need. – Leslie Cooper, deputy director of the ACLU’s LGBT and HIV Project

Within a decade, faith-based agencies had also closed in Washington, D.C., and Illinois. They couldn't stay afloat without government contracts, but refused to work with LGBTQ couples in order to get them.

Many religious freedom advocates spoke out against these developments. They argued that states were worse off with fewer child-placing agencies, noting that faith-based organizations are often more successful than others at recruiting foster and adoptive parents.

Others, including the American Civil Liberties Union, argued and continue to argue that religious beliefs don't justify discrimination. They object to allowing faith-based agencies to screen prospective parents differently than other agencies receiving government funds.

The child welfare system needs more volunteers, not agencies that turn qualified parents away simply because they're gay or don't share their beliefs, said Leslie Cooper, deputy director of the ACLU's LGBT and HIV Project.

"In lots of places, if you're not Christian or the right kind of Christian, you don't have the same opportunities to provide care for a child in need," she said.

When the Supreme Court legalized same-sex marriage nationwide in June 2015, justices acknowledged that the ruling would put pressure on religious conservatives. Religious freedom protections began to clash with LGBTQ rights in more states, and policymakers and judges are still dealing with the fallout, Reaves said.

"After the Supreme Court's decision in Obergefell, there was a lot of talk about the limits and scope of this new right," he said.

Those debates continue to this day, and they can get pretty heated. Efforts to protect LGBTQ couples and faith-based agencies simultaneously are often derailed by a winner-take-all attitude, as the Deseret News has previously reported.

Siblings Nate and Winnie Buck, 4 and 5, hug as mom, Melissa, dad, Chad, and siblings look on at their home in Holt, Michigan. The Bucks adopted their children through St. Vincent Catholic Charities of Michigan, which is involved in a lawsuit over whether

Very energetic siblings Nate and Winnie Buck, 4 and 5, hug as mom Melissa, dad, Chad, and his siblings look on at their home in Holt, MI, Monday June 11, 2018. (Melissa and Chad Buck of Holt, MI, have adopted their five children through St. Vincent Catholic Charities and Melissa is slated to testify in the court case.)

Rod Sanford, For the Deseret News

What’s happening in …

  • State legislatures

The religious freedom rights of faith-based adoption and foster care agencies were a key concern for state legislatures last year. Four states considered bills on the issue and the bills passed in Kansas and Oklahoma, according to a Deseret News analysis.

The new laws in Kansas and Oklahoma allow a religiously affiliated agency to refuse to participate in the placement of a child if doing so would violate the agency's religious convictions without losing access to public money. Kansas Gov. Laura Kelly, a Democrat who was elected in November, has said she hopes to prevent her state's policy from being enforced.

So far this year, state legislators in Tennessee, Arkansas, Colorado, Massachusetts and Kentucky have debated similar measures. No bill has passed yet.

  • Congress

Federal lawmakers are also concerned with adoption-related conflict. This year, Congress is weighing competing measures aimed at redefining the rights of faith-based agencies.

The Equality Act, which passed the House of Representatives in May, would outlaw LGBTQ discrimination in many areas of public life, including in adoption and foster care services. The act's supporters say new protections are needed to ensure same-sex couples won't be turned away.

"Barring discrimination in foster care and adoption will increase the number of homes available to foster children waiting for foster and adoption families," the Equality Act explains.

The act's opponents argue that it unnecessarily limits religious freedom. It's possible to ensure LGBTQ couples can adopt and foster children through agencies willing to serve them without forcing faith-based agencies to violate their religious beliefs, they say.

The Child Welfare Provider Inclusion Act, introduced in the House and Senate in January by Republican leaders, prioritizes religious freedom rights. It aims to ensure that faith-based agencies won't be forced to violate their religious or moral convictions and instructs the federal government to withhold 15 percent of adoption-related funds from states that punish such agencies.

The Equality Act is now before the Senate, which isn’t expected to take it up this year. The Child Welfare Provider Inclusion Act hasn't moved out of committee in either chamber.

  • The White House

Amid ongoing policy battles in Congress and across the country, the Trump administration has been debating how best to protect faith-based adoption or foster care agencies from being forced to choose between closing or violating their beliefs, according to Axios.

As soon as this summer, the Department of Health and Human Services could update the nondiscrimination regulations governing child welfare funds, which states rely on to support foster and adoptive parents.

"Administration officials said the White House is weighing two options: either rescinding (LGBTQ nondiscrimination) rules altogether, or adding an explicit exemption for religious organizations," Axios reported.

This news didn't surprise those following recent adoption-related debates. Trump has repeatedly signaled his support for faith-based agencies and conservative religious Americans in general.

"My administration is working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families, while following their deeply held beliefs," Trump said during the National Prayer Breakfast in February.

His administration had previously granted a waiver to a faith-based foster care agency in South Carolina, allowing it to receive federal funds despite refusing to work with same-sex couples, non-Christians and Catholics. Lawmakers in Texas have also asked for a waiver.

  • The courts

The Trump administration's waiver in South Carolina prompted one of several ongoing lawsuits centered on the rights of faith-based agencies.

Americans United for Separation of Church and State sued the government in February on behalf of a Catholic woman who was turned away from a faith-based foster care agency, alleging that sending government funds to an agency that won't work with all qualified families violates the Constitution.

On May 30, the ACLU announced it's also suing HHS and the state of South Carolina.

"Religious liberty is the right to believe or not and to worship or not according to the dictates of your faith and conscience. It's not a right to discriminate against other people in the delivery of a government service," said Richard B. Katskee, Americans United's legal director.

Judges and state leaders have shared similar views in other adoption cases.

In Pennsylvania, the 3rd U.S. Circuit Court of Appeals recently ruled Philadelphia could require the child welfare agencies it works with to abide by LGBTQ nondiscrimination rules, even if doing so violates an agency's faith-related policies.

Becket, which challenged Philadelphia's policy on behalf of local foster parents, plans to appeal to the Supreme Court, Reaves said.

"In the next month or two, we will be filing a cert petition and asking the court to examine the decision below and reverse the 3rd Circuit," he said. "We think there's a good chance the court will be interested."

Becket is also involved in a lawsuit in Michigan, which challenges recent changes to the state's adoption contracts.

In 2015, the Michigan legislature passed a law protecting faith-based adoption and foster care agencies. But after the ACLU sued over the policy and a Democrat became attorney general, Michigan announced it would no longer work with agencies that refuse to serve same-sex couples for religious reasons.

"The state agreed to require all of its contracted agencies to comply with nondiscrimination requirements and accept all qualified families," Cooper said.

In response, Becket filed a new lawsuit alleging religious discrimination. It's challenging the state's decision, as well as federal LGBTQ nondiscrimination regulations. The ACLU has filed a motion to intervene in the case.

What will happen next?

Even if the Trump administration adjusts the rules governing funding for adoption or foster care agencies, legal and legislative battles will be far from over.

States will likely maintain the ability to pass and enforce their own LGBTQ nondiscrimination protections. The Supreme Court will still be asked to weigh in.

The Trump administration's planned policy shift would ensure faith-based agencies in states like South Carolina and Texas, where leaders expressed concern about federal rules, could stay open. But elsewhere, state leaders might adjust their own policies to ensure that LGBTQ couples are protected, Katskee said.

I think it’s likely that these lawsuits will continue, but you’re always hopeful for some sort of solution. – Nick Reaves, counsel for the Becket Fund for Religious Liberty

"If (the Trump administration) abolishes its anti-discrimination rule or waives it for religious entities, you could still have state laws or regulations" requiring equal treatment of qualified couples, he said.

However, the Trump administration might make it so that states have to choose between partnering with faith-based adoption agencies and losing federal funding, he added.

Even then, Congress could undo the administration's efforts by passing the Equality Act. Under that law, agencies that partner with the government to place children in new homes would have to work with all qualified couples.

"Acts of Congress would override agency regulation," Reaves said.

And any policy change can be challenged in court. The debate about how to balance the rights of LGBTQ couples and faith-based adoption or foster care agencies may not be settled until the Supreme Court gets involved.

"If the Supreme Court says these agencies have a First Amendment right to continue their religious ministry consistent with their religious beliefs, that would preempt any federal law or state law in conflict with that," Reaves said.

A ruling like that could radically reshape how states approach child welfare services, prompting them to stop working with private agencies, Cooper said. Already, some states have expressed concern about being forced to defer to the wishes of faith-based agencies.

The bottom line is that this issue isn't going anywhere anytime soon, experts said.

"I think it's likely that these lawsuits will continue, but you're always hopeful for some sort of solution," Reaves said.