In May of this year, Kansas and Oklahoma passed laws that allow foster care agencies to refuse to place children in foster or adoptive homes "when the proposed placement of such child would violate such agency's sincerely held religious beliefs:"[1] or "when the proposed placement would violate the agency's written religious or moral convictions or policies."[2] In July, South Carolina enacted a similar provision through its state budget. This permission to discriminate against LGBTQ2 people and others seeking to become foster parents or to adopt is part of a concerning nationwide trend. These discriminatory laws must be challenged.
Supporters of the bills claim that religious adoption agencies may move into their states if they have the legal ability to refuse LGBTQ2 couples. However, having more agencies does not mean the state has more placement families, which is the crucial question to serve children in need. The bills are clearly designed to permit discrimination against LGBTQ2 couples, and may also be used to discriminate against unmarried couples and single parents, which threatens the ability for children in need to find a welcoming home.
In discussing this issue, it is important to separate the ideas of fostering and adoption in order to protect the parental rights of another group that has historically faced discrimination: the poor parents of color who are statistically more likely to be dragged through child abuse or neglect proceedings, and are therefore at greater risk of having their children placed in foster care.[3] Foster parenting operates with the intent that the child return to their original family, that the foster parent care for the child for as long as necessary until that time, and that the foster parent be available to adopt if and only if the child cannot return to their original family. This should not be conflated with adoption, where the intent is for the child to gain a new family.
The laws in Kansas, Oklahoma, South Carolina, and potentially at the federal level attack gay couples’ rights to serve as both—as foster parents or as adoptive parents. The foster parent component must be challenged because it is discriminatory and may prevent qualified individuals who would otherwise be able to care for children in need from being able to fulfill that role. The adoptive parent aspect must be challenged in order to achieve the equal opportunity to become a parent, and could be challenged with the additional arguments that LGBTQ2 people are being prevented from gaining the rights and privileges of parenthood.
Historically, there are three ways to be legally recognized as a parent: marriage, biology, and adoption. There is work to be done in each to achieve equal rights for LGBTQ2 parents.
Marriage
Any baby born into a marriage is presumptively the child of those two people, even if the child is not biologically related to one of the people. This was implemented in order to protect inheritance.[4] When the Supreme Court legalized gay marriage in Obergefell v. Hodges, it stated in dicta that the ruling should provide gay couples with the right to marry “on the same terms and conditions as opposite-sex couples” and should include “the constellation of benefits that the States have linked to marriage.”[5] This must include the marriage presumption for parenthood, that any child born into a marriage is the child of both, even if the child is not biologically related to the second partner. The Supreme Court further clarified this issue in Pavan v. Smith, [6] where the Court held that Arkansas’ law requiring that the biological mother’s husband be listed on a baby’s birth certificate and denying the biological mother’s wife the right to be listed on the baby’s birth certificate was unconstitutional.
While the right to be a legally- recognized parent through marriage is likely to play out through contested cases over the next few years, the law is clear and the resulting LGBTQ2 parental rights should be as well. However, in the meantime, experts still recommend that every parent who is not the biological parent adopt or obtain a court judgment of parentage to ensure recognition across state lines.
Biology
A woman is presumptively the mother of a child she bears. For men, it is slightly more complicated; unmarried men who are the biological father of a child have automatic responsibilities but may only obtain constitutionally protected rights if they assert paternity and take advantage of the opportunity to develop an attachment with their children after birth, or are petitioned for child support.
This avenue to be recognized under the law as a parent is not equally available to LGBTQ2 folks. In a previous article, I discussed the need to design laws to give LGBTQ2 parents an avenue to be- come parents that was equal to the biological avenue that heterosexual partners have to become parents. [7]
It seems unfair and is unequal that a man can become a father by accident—with both rights and obligations—where in many states an unmarried woman who is the partner of a biological mother cannot be recognized as a parent under the law, even if the child was conceived with the intention that both partners be parents of the child, without going through the second step of adoption. I argued that it is crucial that we create a law to rectify that inequality; however, it is also important to do so in a narrow way in order to avoid harming the rights of others, vulnerable parents. I propose and support the creation of a law that recognizes as a co-parent only a partner who was involved at the time of conception and formed the intent to become a parent together with the biological parent at that time. This is what is needed in order to achieve equal rights, while anything broader expands the number of people who can drag a family through court.
Adoption
The third way to be legally recognized as a parent is through adoption. There is still a long fight to gain the equal ability to become a parent through adoption.
Mississippi bars adoption by LGBTQ2 couples. Alabama may also have some restrictions on adoption by LGBTQ2 couples. Kansas, Kentucky, Nebraska, North Carolina, Ohio, Utah, and Wisconsin bar adoption by all unmarried couples, whether they identify as heterosexual or LGBTQ2. Only fifteen states and the District of Columbia affirmatively permit, via state statute or appellate court decision, adoption by both partners.
As discussed, additional states permit adoption agencies—even ones who receive public funding— to refuse to serve or place children with families that where it would “conflict with the agency’s sincerely held religious beliefs.” Virginia, North Dakota, South Dakota, Michigan, Virginia, Alabama, Mississippi, Texas, Kansas, Oklahoma, and South Carolina currently have such laws. Additional states are considering similar legislation.[8]
At the federal level, the House Appropriations Committee adopted an amendment to the 2019 federal Departments of Labor, Health and Human Services, and Education funding package, which provides that federal funding will be withheld from state or local governments that “discriminate or take an adverse action against” a child welfare agency who refuses to provide services that conflict with the agency’s sincerely held religious beliefs.[9],[10] This is in addition to the First Amendment Defense Act and the Child Welfare Provider Inclusion Act, which are both proposed legislation that purport to protect religious choice and will permit discrimination against LGBTQ2 people and their families. While there are many barriers to this version of the Labor, Health and Human Services funding bill being enacted into law—the full House would have to pass it and gain approval of a conference committee with the Senate, or somehow include it in a compromise version, rather than pass the Senate’s version that does not include this language—this proposed legislation bears watching. Litigation challenging the comparable laws at the state level should be used to build the challenge against this proposed federal legislation, and perhaps seek a Supreme Court ruling that could bar this type of discrimination nationally.
Clearly, each of these laws may limit LGBTQ2 couples’ ability to adopt, even where adoption by LGBTQ2 couples is not explicitly banned. The broader permissions to permit discrimination in foster placements not only may decrease safe placements for LGBTQ2 kids and decrease possible placements overall for children in need, they also “send a signal that the state governments enacting them accept and even embrace the dangerous and harmful notion that discrimination against LGBTQ2 people is a legitimate demand of both conscience and religion” and “threaten[] the broader principle that people should not be refused goods and services solely because of who they are.”[11]
These laws must be challenged and long-term, strategic litigation will be necessary on each front. In the meantime, I want to echo the National Center for Lesbian Rights and Gay & Lesbian Advocates and Defenders (GLAD)’s plea that LGBTQ2 couples whose relationship is dissolving choose to respect each other’s parental rights and avoid litigation that may make it harder for future LGBTQ2 parents to be recognized.[12] For example, it could be extremely harmful to LGBTQ2 parents’ adoption rights generally for a biological parent to challenge their ex-partner’s parental rights obtained through adoption of their joint child. Families are complicated, personal, and a crucial part of our human rights. Let us not give further fodder to discriminatory actors, and instead unite toward a brighter future for LGBTQ2 parents and their children.
Author
SAMANTHA BEI-WEN LEE
Samantha Bei-wen Lee is a Staff Attorney at Brooklyn Defender Services Family Defense Practice. This article and its opinions are solely attributed to the author and do not reflect any statements or opinions on behalf of the Brooklyn Defender Services. Please note, The Equalizer’s editors may have changed the varying sexual orientation and gender identity acronyms to “LGBTQ2” for consistency.