Religious exemption laws exacerbating foster and adoption 'crisis,' report finds

Laws allowing child placement agencies to deny LGBTQ prospective parents are worsening the current “child welfare crisis,” according to a new report.
By Julie Moreau

Religious exemption laws allowing child placement agencies to deny LGBTQ prospective parents from fostering or adopting are exacerbating the current “child welfare crisis,” according to a new report from the liberal Center for American Progress (CAP), Voice for Adoption and the North American Council on Adoptable Children.

“Turning away LGBTQ prospective parents by asserting a religious exemption or taking advantage of a lack of state nondiscrimination law is a violation of this group’s rights,” the report states. “It also negatively affects the already strained child welfare system, ultimately harming the children in its care.”

“CHILD WELFARE CRISIS”

In 2017, there were about 443,000 children in foster care across the U.S., according to data from the U.S. Department of Health and Human Services (HHS). Each year, some 50,000 children are adopted through the U.S. child welfare system, but about 20,000 others “age out” before being placed with an adoptive family, according to HHS.

In addition to helping place more children in permanent homes, the CAP report claims taxpayers could save hundreds of millions of dollars by removing barriers blocking LGBTQ people from becoming adoptive parents.

“Each child adopted from foster care, even with adoption assistance support, reduces state and federal spending by almost $29,000 annually when compared with those children who remain in foster care,” the report states. “If the child welfare system finds adoptive families for just 1,000 ten-year-old children who would otherwise have aged out of foster care at 18, a rough estimate suggests it would save $230 million of taxpayer money over eight years.”

The report warns that turning qualified prospective parents away will add unnecessary stress to “an already stressed system,” and it notes LGBTQ people represent a an “important subgroup of potential parents.”

“Same-sex couples raising children are seven times more likely to be raising a foster child and seven times more likely to be raising an adopted child than their different-sex counterparts,” the report states, citing data from the UCLA’s Williams Institute. “They are also more likely to adopt older children and children with special needs, who are statistically less likely to be adopted.”

Despite the needs of children in the child welfare system and the willingness of LGBTQ prospective parents, the report notes there are significant barriers in place that are preventing them from being matched.

“WAIVER TO DISCRIMINATE"

At present, 10 states — Alabama, Kansas, Michigan, Mississippi, North Dakota, Oklahoma, South Carolina, South Dakota, Texas and Virginia — have laws allowing religiously affiliated placement agencies to turn away LGBTQ parents, and even refuse to place LGBTQ children.

Frank J. Bewkes, a policy analyst at the Center for American Progress and one of the report’s authors, told NBC News these religious exemption laws “reduce the pool of qualified parents.”

“We are not in the position to turn any qualified parents away,” he said. “That is not in the best interest of children … [There are] too many people in care and not enough homes to take them in.”

The report cites research that demonstrates children raised in same-sex households are just as emotionally and physically healthy those raised by straight couples.

The first legislation to allow religious exemptions for child placement agencies was passed in North Dakota in 2003, which allowed agencies to refuse to participate in placement that violated the agency’s “written religious or moral convictions or policies,” and still receive government contracts. But after nearly a decade without other states following suit, such laws have been gaining momentum. Two states passed such a law between 2012 and 2016, three did so in 2017 and four in 2018 alone, according to CAP.

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These laws have the potential to affect not only LGBTQ prospective parents but any prospective parent who does not fit the agency’s definition of a suitable family. In March of this year, South Carolina made headlines when Miracle Hill, the largest foster agency in the state, turned away Beth Lesser and her husband for being Jewish, referring them to a different agency.

“To say we can go somewhere else is like saying you can’t use this state-funded hospital, but you can go to the one down the street,” Lesser told the Greenville News.

Earlier this week, 75 civil rights, child welfare and faith organizations sent a letter to HHS Secretary Alex Azar asking him not to grant South Carolina’s request to exempt Miracle Hill from federal nondiscrimination law.

“Granting South Carolina’s request would upend HHS’s responsibility to ensure that states are properly caring for the nation’s children by explicitly permitting a provider to put its own interests ahead of the best interests and explicit rights of the children in its care,” the letter states. “In addition, an exemption would sanction taxpayer-funded discrimination by organizations providing a government service, violating a host of constitutional and statutory protections.”

Currey Cook, an attorney at LGBTQ civil rights group Lambda Legal said the implications of granting “a waiver to discriminate” for organizations funded with taxpayer dollars, such as Miracle Hill, “are enormous.”“To allow faith-based agencies to put their beliefs ahead of the wellbeing of children in the state’s care is not only unconstitutional, but more importantly, it is harmful to the very children agencies are paid by the government to care for,” Cook said.

These religious exemption proposals are also being introduced at the federal level. In July of this year, Rep. Robert Aderholt, R-Ala., unsuccessfully introduced an amendment to the 2019 appropriations bill that, had it passed, would have slashed 15 percent of the federal funding for child welfare services programs to states that enforced nondiscrimination protections in child placement.

Similarly, Sen. Mike Enzi, R-Wy., and Rep. Mike Kelly, R-Pa., introduced last year the Child Welfare Provider Inclusion Act, which aims to prevent the federal government from taking action against any child welfare agency that “declines to provide, facilitate, or refer for a child welfare service that conflicts with the provider's sincerely held religious beliefs or moral convictions.” The bill is still pending in the Ways and Means Subcommittee on Human Resources.

In a statement supporting the bill, Rep. Kelly called it “100 percent inclusive and child-focused” and noted that “faith-based organizations have historically played a heroic role in caring for our country’s most vulnerable kids.”

“There is no good reason why any of these care providers should be disqualified from working with their government to serve America’s families simply because of their deeply-rooted religious beliefs,” Kelly said in the statement. “When it comes to helping kids and making families stronger, all service providers – religious or otherwise – should have a seat at the table. That’s what this bill is about."

Bewkes cautioned that we have not seen the last of religious exemption laws. He said he expects a “ramping up” of proposed legislation in the next legislative session. “This is one of the battlegrounds for LGBTQ equality,” he added.

The lion's share of U.S. states no have explicit protections for LGBTQ prospective parents, according to Movement Advancement Project (MAP), an LGBTQ think tank. Three states (California, New Jersey and Rhode Island) and the District of Columbia prohibit discrimination by adoption and foster care agencies and officials based on both sexual orientation and gender identity, and an additional six states (Oregon, Wisconsin, New York, Massachusetts, Maryland and Nevada) offer some adoption and foster care discrimination protections based sexual orientation alone, according to MAP.

THE COURTS

Recently, religiously affiliated child placement agencies and LGBTQ prospective parents have been turning to the courts to decide their fate as foster and adoptive parents.

In Philadelphia, Catholic Social Services is suing the city for the right to receive government contracts even if it refuses to place children with LGBTQ parents, in violation of the city’s nondiscrimination policy. Thus far a federal judge has rejected the Catholic Social Services’ request for a preliminary injunction, holding that the city’s nondiscrimination law does not violate the organization’s rights.

And in Texas, a lesbian couple was turned away by a foster agency because they did not “mirror the holy family.” Lambda Legal is suing the HHS and the U.S. Conference of Catholic Bishops on behalf of the couple for “unlawful funding” of child welfare organizations that accept federal dollars but refuse to work with same-sex couples. The case is still pending in the U.S. District Court for the District of Columbia

CASE STUDIES: TEXAS & MICHIGAN

The CAP report undertakes case studies of Michigan and Texas, two large states that have adopted relatively broad religious exemption laws. Bewkes described the situation in these states as “pretty bleak,” and the report describes an acute placement crisis in each of them.

“Nationwide, 28 percent of youth had been in foster care for two or more years in fiscal year 2016,” according to the CAP report, which cited HHS data. “In that same period, 38 percent of Texas youth and 52 percent of Michigan youth had been in care for two or more years.”

In Texas, which has had a religious exemption law for child placement agencies since 2017, the number of foster and adoptive homes working with licensed child placement agencies has decreased nearly 40 percent from 2012 to 2017, according to data from the Texas Department of Family and Protective Services.

And in Michigan, which has had a religious exemption law for child placement agencies since 2015, the number of licensed foster homes dropped by more than 20 percent from 2012 to 2017, according to data from the Michigan Department of Health and Human Services.

The report also highlights how LGBTQ-accepting agencies in these states may be inaccessible to some prospective parents because of geography.

“We found they are actually spaced quite far apart,” Bewkes said of LGBTQ-accepting agencies. “If you’re in El Paso, there are no agencies that have explicit policies that are welcoming. You’d have to drive 350 miles to Lubbock, Texas, to find an agency that is welcoming,” he said, adding, “that’s in a different time zone.”

RECOMMENDATIONS

CAP ended its report with recommendations for the federal government, state governments and state-licensed child-placing agencies to help address the current “child welfare crisis.”

The organization recommended that a law be passed at the federal level that “explicitly prohibits state-licensed child placing agencies that receive federal funding, or that contract with those that do, from discriminating against or turning away qualified LGBTQ prospective foster or adoptive parents.” And, in the absence of federal protection, CAP recommended that “state legislatures should pass into law explicit nondiscrimination protections for LGBTQ prospective parents — both adoptive and foster.”

The report also recommended that LGBTQ-welcoming child-placement agencies make their policies explicit by, for example, posting nondiscrimination policies to websites, as these are often the first place prospective parents go when considering fostering or adoption. The report also encouraged states and child placement agencies to increase their recruitment efforts to all prospective parents, especially those who identity as LGBTQ, as this population has a higher propensity to foster and adopt.

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