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An Oregon woman’s religious challenge to state foster care regulations would undermine the state’s ability to protect vulnerable children, asserts a just-filed Freedom From Religion Foundation amicus brief, joined by Americans United for the Separation of Church and State.
Jessica Bates, the plaintiff, claims that the state of Oregon violated her free-exercise and speech rights when the state denied her application to become a foster parent due to her refusal to comply with a state regulation requiring foster parents to “accept and support” LGBTQIA+ children. Bates contends that by requiring foster parents to show support for LGBTQIA+ youth — such as by taking them to Pride events, affirming their sexual orientation and/or gender identity, allowing them access to appropriate medical care and not requiring children to go to religious events/services at places of worship that do not affirm their identities — the state is unlawfully burdening her First Amendment rights.
A district court denied a preliminary injunction, which would have required the state to approve her foster care license application while the case proceeded, stating that Bates had failed to show that she was likely to win on the merits. Bates, represented by the Christian nationalist legal outfit Alliance Defending Freedom, has appealed to the 9th U.S. Circuit Court of Appeals.
Granting Bates’ requested injunction would severely undermine Oregon’s interest in protecting the youth in its custody with consequences that reach beyond just the needs of LGBTQIA+ youth, maintains FFRF in its friend-of-the-court brief. It is clear that since there is no way to predict which children will identify as LGBTQIA+ in the future, Oregon can only protect children from the well documented harms of parental rejection during the licensing phase, rather than the placement phase. To grant a religious exemption to the regulation would create dangerous precedent, that would not only harm LGBTQIA+ youth (who make up an estimated 30 percent of foster youth nationwide) but also place all children in the public foster care system at significant risk for physical and emotional abuse, educational neglect and sexual abuse.
“If Bates’ request is granted, Oregon will be placed in a position where it will be unable to implement policy decisions that are in the best interests of a highly vulnerable, but not readily identifiable, population of children under its care. Instead, the state will be required to ignore the opinions of experts in favor of the subjective religious beliefs of any individual foster parent,” states the brief.
Bates claims that her case is similar to other cases involving religious objections to anti-discrimination regulations, such as the infamous Masterpiece Cakeshop case, in which the Supreme Court ruled that the state of Colorado had treated a bakery owner with hostility when he refused to bake a wedding cake for a same-sex couple due to his religious opposition, violating the First Amendment. Yet, she has failed to set forth any evidence that she had been treated with hostility and she hasn’t provided any legitimate evidence that there was an established process of exemptions from the regulation, as was the case in Fulton v. City of Philadelphia.
FFRF’s brief states that this case is even further distinguishable, noting that: “In each of the cited cases, the individuals being protected by the challenged prohibition against discrimination had a choice to engage with the business or organization that had a religious objection to serving or including LGBTQIA+ people. This is not the case, however, when it comes to foster youth. Children in the foster care system do not choose to enter it, nor do they have a choice in where they are placed.”
FFRF goes on to alert the court to the potential disastrous consequences that creating this type of precedent could lead to: “The rights of Oregon foster youth are clearly outlined in the Oregon Foster Children’s Bill of Rights (Children’s Bill of Rights), and include the rights to self-determination of sexual orientation and gender expression. … The Children’s Bill of Rights lists many other rights that a potential foster parent may find objectionable on the basis of religion. Should Bates’ request be granted, Oregon will be required to prioritize religious objections over these rights, opening the door for potential foster parents to be permitted to engage in more traditionally recognizable forms of abuse and neglect.”
FFRF warns that religious belief is frequently used to mask abuse and neglect. By allowing Bates to use her religious beliefs to circumvent a child’s legally protected right to express their sexual orientation and/or gender identity, other foster parents could receive exemptions allowing them to physically/emotionally abuse the children in their care, provide them with a substandard education and ignore mandatory reporting requirements in the case of sexual abuse.
Lastly, FFRF urges the court to consider that granting a preliminary injunction could result in life-long consequences for any children placed in Bates’ care while the rest of the case continues to move forward.
“If the preliminary injunction is not granted and the regulation in question is later determined to be unconstitutional as the case proceeds, Bates’ ability to access the public foster/adoption system would merely be delayed,” FFRF’s brief points out. “In contrast, if the preliminary injunction is granted and the regulation in question is later upheld, Oregon would then be required to remove any children placed in her care in the interim, disrupting the lives of children who have already experienced the trauma of being removed from their homes and families, and at no point chose to be involved in this litigation or its consequences.”
Since the risk for damage created by this exemption is so great, the court must affirm the lower court’s decision to deny the preliminary injunction, the brief concludes.
You can read the full FFRF amicus brief here.
FFRF Equal Justice Works Fellow Kat Grant was the lead attorney in preparing the brief. FFRF Associate Counsel Sam Grover is the counsel of record for the brief.
The Freedom From Religion Foundation is the nation’s largest association of freethinkers (atheists and agnostics) with 40,000 members nationwide, including more than 1,100 members in Oregon. It works to buttress the constitutional separation between state and church.
