SALT LAKE CITY — A contentious debate is simmering around the country about whether the government can force faith-based adoption agencies to give gay and lesbian couples equal opportunity for adopting foster children.
Thus far the question has been handled on a state-by-state basis — nine states and the District of Columbia affirmatively allow same-sex adoptions, four states prohibit it, and the other 37 states neither forbid nor actively protect so-called gay adoptions.
However, thanks to a bill now under consideration in the U.S. House of Representatives, the issue is quickly morphing from one of state oversight to a matter of national scope.
A philosophical fissure exists because most adoption agencies affiliated with a religious denomination — think Catholic Charities — oppose homosexuality on moral grounds and therefore refuse to place children with gays or lesbians. Conversely, the gay community is trying to leverage anti-discrimination laws into guarantees that any adoption agency with a government contract will serve gays and lesbians, regardless of religious belief.
H.R. 1681, the "Every Child Deserves a Family Act" now in the House, would require any adoption agency contracted by the government to seek permanent placement for foster children to give equal consideration to gay and lesbian couples or risk losing its government funding. A companion bill is being prepared for the Senate and will likely be presented later this year.
Rep. Pete Stark, D-Calif., introduced the House bill in May. It's unclear whether the legislation will pass or even make it out of the House Committee on Ways and Means, but what's certain is that Stark's resolution is attracting a growing groundswell of support. Consider: Stark introduced essentially identical legislation in both 2009 and 2010, but the 2011 edition already has more co-sponsors (60) than the last two combined. Just as tellingly, one of those co-sponsors is Rep. Ileana Ros-Lehtinen, R-Fla. — marking the first time a Republican has signed on to help sponsor of Stark's gay adoption bills.
"The majority of states are silent on the issues of sexual orientation, marital status or gender identity of adoptive or foster parents," Stark wrote in a May 20 op-ed piece for the Washington Post. "We need a federal remedy … to remove all remaining barriers to finding stable, caring permanent homes for America's foster children."
Not everyone shares Stark's enthusiasm for requiring all government-contracted adoption agencies, regardless of religious belief, to funnel children to gay and lesbian couples. In fact, some experts believe that enacting such a measure would produce potentially catastrophic consequences.
Consider the case of Chuck Johnson, the president and CEO of the National Council for Adoption. As the head of a non-profit advocacy organization that believes every child deserves a permanent home, Johnson is acutely sensitive to public opinion and ever mindful of a large confluence of interests. Nevertheless, his stance regarding gay adoption is as neutral as Switzerland: "no official position."
But there comes a point where right is right and core values can bend no further before shattering. For Johnson, that line of demarcation is crossed when the government mandates that faith-based organizations contracted to serve foster children must choose between shutting down and arranging gay adoptions.
"(Gay adoption) is happening nationwide — there are agencies that literally work with gay and lesbian couples," Johnson told the Deseret News. "So the question then becomes, if there is access then why are we going to require an agency to participate in something it opposes when there are already opportunities for families to find help?"
Not only is that circumstance presently on the table in Congress, it's also on full display right now with Catholic Charities in Illinois. State judge John Schmidt ruled Aug. 18 that Catholic Charities must relinquish casework for approximately 2,200 foster children in four church dioceses because the organization will not acknowledge the new Illinois civil unions law or arrange adoptions to openly gay and lesbian couples.
The judge's decision was months in the making: the Illinois Department of Children and Family Services opted earlier this year not to renew $30 million in contracts that expired June 30 with the non-profit Catholic Charities on the grounds that its policy of referring gay and lesbian couples to other adoption agencies is discriminatory. Schmidt had temporarily reinstated the expired contracts until he reached a decision.
Peter Breen, an attorney for Catholic Charities, www.chron.com/news/article/Catholic-Charities-to-appeal-foster-care-ruling-2146169.php announced last week that he will seek a stay of the court's decision while Catholic Charities appeals the ruling on religious freedom grounds. The children remain with their Catholic Charities foster placements pending the outcome of Breen's appeals.
For his part, Johnson sees nothing discriminatory in the Catholic Charities practice of using referrals to preserve its freedom of conscience.
"Our issue," Johnson said, "is we support the right of faith-based agencies to be exempted from any kind of provision like this because of the huge disruption that would occur if those agencies were forced out of business ... because the state has imposed some kind of restriction that doesn't allow them to practice the free exercise of their religion."
The American Civil Liberties Union concurs with Stark and dissents from Johnson's rationale, to the extent that the ACLU sought and received judicial permission to actively intervene and join Illinois in litigating the case against Catholic Charities. Karen McCreary, executive director of the ACLU of Utah, explains that the ACLU believes unencumbered religious freedom essentially ends for any social services organization if and when it chooses to accept government funding and/or contracts.
"Any religious organization is of course free to practice in accordance with its religious teachings," McCreary said. "However, once an organization accepts federal dollars to perform the government's job of finding families for children in state custody, it should not be permitted to use religious criteria — as opposed to child-welfare criteria — in choosing families for them."
The present situation pitting Catholic Charities against Illinois is not applicable to LDS Family Services, the not-for-profit branch of the LDS Church that facilitates adoptions. Although LDS Church spokesman Cody Craynor declined to comment for this story, it is apparent that LDS Family Services would not be affected by legislation such as Every Child Deserves a Family Act because the organization does not contract with government entities. Instead, LDS Family Services specializes in adoptions beyond government purview: infant adoptions (where the birth parents choose an adoptive home), designated adoptions and special-needs adoptions.
A very similar situation to the one playing out in Illinois occurred in 2006 in Massachusetts, where then-Gov. Mitt Romney could not grant Catholic Charities's last-gasp request to be exempted from anti-discrimination measures because of religious beliefs, and the conflict concluded only after Catholic Charities stopped arranging adoptions in Massachusetts.
"My understanding is that any exemption would require legislation and would not be something I would be authorized to do on a personal basis," Romney said at the time, according to a report in the Boston Globe.
U.S. Department of Health and Human Services reports indicate that approximately 50,000 children were adopted from foster care during fiscal year 2010, but more than 107,000 were waiting for adoption as of Sept. 30, 2010.
"Were these agencies forced to close (all over the country) — not for lack of quality of services but because there's a conflict with a religious belief — I think you would do children a disservice," Johnson said. "There'd really be near calamity in the process because you would probably see a mass exodus of faith-based agencies now involved in the system. They're doing good, professional work, and were we to lose them, I think children and families would suffer."