This is a guest post from Anthony Kreis, once Georgia’s legal champion of all that is right and fair, has returned in a limited engagement to voice his thoughts on HB 159, a one time adoption law reform bill, that is now a vehicle for religious freedom:
Once more unto the breach, dear friends! With another year, comes the inevitable– another unnecessary and contentious religious discrimination bill. This year’s target is vulnerable children and the loving families who want to care for them.
HB 159 was initially a laudable, bipartisan attempt to revamp Georgia’s adoption laws. That was the case at least until the Senate had the chance to hijack the process and add a poison pill amendment.
As amended, HB 159 would permit taxpayer-funded adoption and foster care agencies to discriminate against prospective adoptive or foster parents if those agencies have a religious objection to placing children in the care of those families because they are lesbian, gay, bisexual, or transgender (LGBT), or for anything else about them— if they’ve been divorced, if they practice a particular religion— that conflicts with the agency’s religious beliefs. The bill would also permit these agencies to discriminate against children if they have religious objections to serving those children.
As a scholar of family law and religious liberty, I can say without hesitation that HB 159 is dangerous. HB 159 is a constitutionally defective piece of legislation that contravenes well-established precedent concerning the Equal Protection Clause of the Fourteenth Amendment. Furthermore, HB 159 suffers from an additional constitutional infirmity, as it fails to square with the requirements of the Establishment Clause.
Above all else, HB 159 runs contrary to the most fundamental principle in family law—that the best interests of children must yield to all other considerations. When the state removes children from their families because of abuse or neglect, the primary consideration for placing those children with foster or adoptive families and providing services to those children must be the child’s needs and interests.
Although this bill gives agencies permission to deny service to all sorts of children and families to whom they have religious objections—e.g. people of a different faith, people who don’t go to church, people who have divorced—the purpose of the proposal is clear: to allow agencies to turn away LGBT families. As the Supreme Court noted in Obergefell v. Hodges, “many same-sex couples provide loving and nurturing homes to their children, whether biological or adopted. And hundreds of thousands of children are presently being raised by such couples.” Social scientists overwhelmingly conclude that children raised by same-sex couples fare as well as their peers raised by heterosexual parents. Private religious views should not be situated on the same plane as a child’s needs. HB 159 will seriously harm the Georgia Department of Human Services Division of Family and Children Services’ mission to prioritize the health, safety, and welfare of children.
HB 159’s equal protection deficiencies are considerable. First, the clear target of HB 159 is LGBT people. HB 159 would allow the state to create monopolies on adoption services, particularly in underserved and rural communities, and then permit those monopolies to choke off access to tax-subsidized programs to LGBT youth and prospective parents. HB 159 impermissibly points to same-sex couples and LGBT youth as legitimate targets of discrimination. Neither “moral disapproval of [a] group” or the “bare desire to harm” a disfavored group is sufficient justification for legislation.
The Supreme Court’s decision in Palmore v. Sidoti is also instructive. The Palmore court addressed the issue of racial stigma in a family court’s child-custody decision. In Palmore, two divorced white parents, one of whom remarried a black man, contested custody of their daughter. The family court determined that the social stigma the child would endure from living in an interracial household was not in the child’s best interests and weighed against placing the child with the remarried parent. The Supreme Court held that the family court’s consideration was impermissible under the Fourteenth Amendment. Chief Justice Burger explained:
The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect. Public officials sworn to uphold the Constitution may not avoid a constitutional duty by bowing to the hypothetical effects of private racial prejudice that they assume to be both widely and deeply held.
Similarly, HB 159 would have the practical effect of breathing life into private biases within state-supported institutions charged with protecting the welfare of children.
Organizations that accept public money have a duty to serve all taxpayers. This basic anti-discrimination principle “ensure[s] that services are freely available in the market, and . . . protect individuals from humiliation and dignitary harm.” While individuals are free to believe and speak consistent with the dictates of their religious faith, “when actions, even religiously inspired, conflict with other constitutionally protected rights” the anti-discrimination principle must prevail.
Because it would directly give public funds to organizations that could wall off services from an identifiable class of persons for religious reasons, this legislation raises a serious Establishment Clause question. The Supreme Court has articulated in Establishment Clause jurisprudence that religious accommodations contravene the First Amendment when they impose significant burdens on identifiable third parties who derive no benefit from the accommodation. HB 159 creates burdens on the children in the foster care system, who may lose out on opportunities to be placed in loving families who are excluded for purely religious reasons, effectively compelling those third parties to bear the costs of others practicing their religion.
While attempting to appear as one, HB 159 is not a religious accommodation law. Rather, HB 159 is a blunt instrument, which would shift the mission of child welfare-related social services from what should be paramount— the best interests of children— toward the interests of agencies hired by the State to care for them. It should be rejected
Anthony Michael Kreis is a law professor at Chicago-Kent College of Law where he specializes in LGBT civil rights and family law.