On Monday, Stefan posted a guest editorial from our former Contributor, Dr. Anthony Kreis. Yesterday I received a rebuttal piece from Dr. Robin Fretwell Wilson. Dr Wilson is the Roger and Stephany Joslin Professor of Law and the director of the Program in Family Law and Policy and The Fairness For All Initiative at the University of Illinois College of Law. More notably for the context here, she’s also a professor for which Dr. Kreis once served as a research assistant. According to her biography, Wilson recently worked with Utah state lawmakers to pass nondiscrimination legislation that balances LGBT rights and religious liberty. I offer this piece as part of our commitment to presenting opposing viewpoints, and to ensure that all corners of the Illinois academic legal community are able to weigh in on how Georgia makes our laws.
HB 159: The Hard Questions Facing Georgia on Adoption
by Robin Fretwell Wilson
Controversy swirls again around Georgia and “religious liberty”, now over HB 159, which would allow adoption agencies to make placements based on “mission.”
The bill does not mention religion but has become controversial for allowing agencies to refuse placements with LGBT couples if they “have a religious objection.”
What would the bill actually do?
If the state cannot place a child with one agency, it must immediately “refer … to another child-placing agency.” This might occur for neutral reasons, i.e. an agency may not place special-needs children because those placements require special skill.
The real debate is around which families agencies place with. If HB 159 becomes law, the state could not “take any adverse action against” agencies that follow their “missions.”
Patently, HB 159 is not a religious-liberty protection. This prohibition binds the state even if an agency acts for secular reasons—like being anti-gay. The Georgia legislature should dial this back.
It is not clear that gay couples will get shorted. Some agencies once limited adoption to married couples, effectively barring gay couples from adopting.
After Obergefell, a couple’s marital status still matters in many states, but gay couples can marry—and therefore adopt. The last ban on gay adoption in America was struck last year. Many adoption agencies are gay friendly. Many place with single persons.
So, today, every couple who wants to make the commitment of a “real family” to children can do so.
As an adopted child, I cannot imagine a better outcome. My parents changed the entire arc of my life. Without them, I shudder to think what life would have brought. Would I have “aged out” of foster care like so many kids do today?
HB 159 does not exclude anyone from adopting. It merely allows placements consistent with their agencies’ “missions.”
We know that religious adoption agencies have closed—or divested whole services—when they have not received an exemption.
Some women will choose to carry a pregnancy to term rather than abort because adoption is available.
Trying to decide what is in the best interest of children here is complex. But part of that assessment must be whether adoption agencies will continue to do the all-important work they have done in the past.
Allowing religious social services agencies to follow their convictions is not a novel, or right-wing, idea.
Many states that voluntarily enacted same-sex marriage left room for religious adoption agencies, including Minnesota, Maryland, Rhode Island, and Connecticut. Michigan and South Dakota enacted free-standing laws to allow adoption agencies to make placements consistent with their values—requiring agencies to make referrals without harming families.
The Georgia legislature would be wise when protecting faith communities to also give much-needed protections from discrimination in housing, hiring and public accommodations, not only to LGBT persons but people of color and other vulnerable minorities. HB 159 should also reach only those missions associated with faith tenets.
Some worry that allowing the adoption market to segment gives voice to prejudice, citing Palmore, a case where a court awarded custody to a Caucasian father rather than a Caucasian mother who had remarried a Black man. It did so nakedly and solely on the basis race, as the Supreme Court noted when striking the award. Stacks of cases have since interpreted Palmore to bar the use of race, but only when “the sole consideration.”
Palmore’s lesson: the state can take into account multiple considerations when deciding hard questions of child welfare.
In HB 159, race is not at issue because no adoption agency operating in Georgia appears to consider race. Still, racial considerations should be placed off-limits specifically.
Nonetheless, some charge that taking into account adoption agencies’ missions impermissibly “establishes” religion. Not so.
Thousands of laws take into account the special constraints that religious actors operate under, just as thousands of laws take into account the special constraints of for-profit corporations.
Additionally, the Supreme Court has repeatedly, and unanimously, held that religious protections are constitutionally permitted, even if not required. Consider the janitor who worked at a Mormon gym and was fired because he lost his “Temple recommend” for drinking. He sued, challenging Title VII’s exemption for religious organizations as violating the Establishment Clause. The Supreme Court disagreed: “‘the government may (and sometimes must) accommodate religious practices and … it may do so without violating the Establishment Clause.”’
Ultimately, Georgia faces a hard question: In a state with 90+ adoption agencies, where all prospective adoptive parents may adopt but 8 agencies make placements consistent with traditional religious views of marriage, are Georgians willing to gamble that those agencies will stay open if they cannot adhere to their values?
This assessment is tricky because it rests on predictive judgments. History shows that some will close, less clear is whether others fill the gap.
Will gay couples be able to adopt without inconvenience or delay? A quick review of Georgia agencies shows no Georgian will be more than a county away from an adoption agency that serves their needs.
As one of those lucky kids whose life was transformed by adoption, I think we can ill-afford to treat the placement of kids like any other market service. Hanging in the balance are those who need our help, compassion, and love the most.