The volume includes a wide array of voices offering diverse and important perspectives. Law and religion scholars include longtime advocates of religious liberty, as well as scholars who are skeptical of religious accommodations. The volume also includes contributions from family law scholars, as well as often overlooked contributions from legislators, journalists, ministers, physicians, and litigators at the front lines of some of these debates. Each chapter contributed by the experts who are represented operates as a standalone contribution; however, the chapters include consistent threads of pointed debate between some of the authors, almost in the form of a mediated dialogue.
The Contested Place begins by discussing the foundations and boundaries of religious liberty. From there, it moves to religious claims arising at birth, such as matters of abortion and contraceptive access. Next, various authors discuss religious claims in the context of child-rearing, including parental rights, marriage agreements, custody and divorce disputes between religious parents, and conflicts between religious faith and child welfare. The volume then surveys a range of perspectives on the transformation of marriage after Obergefell, including how we should think about the modern purpose of marriage, what religious arguments can be made for same-sex marriage, and how we should think about polygamy in light of the legalization of same-sex marriage. It provides a discussion among the authors about the interplay between the culture of the family and the new civil rights movement related to sexual identity. The concluding section offers fascinating and comparative perspectives from international authors who shed light on how transformation in marriage and self-identity rights for women in other countries provides important context for U.S. laws.
One important theme that emerges from the book’s dialogue centers on the question of harm to third parties related to religious exemptions. Critics of religious accommodations, both within this volume and more broadly in academia, assert that exempting religious groups or individuals from generally applicable laws can unjustifiably harm other parties who do not benefit from such an accommodation.1 In contrast, proponents of religious exemptions argue that third-party harms are either mostly hypothetical or a problem of the government’s own making, and that in fact greater harm to society results from failing to protect religious institutions. This question of how we should think about third-party harms that flow from religious accommodations is receiving increased attention in the law and religion space,2 but some of the most acute conflicts present themselves in the context of family life.
Part I of this review offers a summary of some of the debate this volume covers regarding those third-party harms that flow from religious accommodations in various areas of law that touch on family life. In some family law contexts, the third-party harms from religious accommodations are undeniable and clear, such as harms to children resulting from religiously motivated corporal punishment. In other areas, the authors have sharp disagreement about the reality of these harms, or the unavoidability of them, including contraceptive access or other pharmaceuticals.
Part II addresses one area of family law that was absent from this volume but that is highly relevant to this question of third-party harm: protections for faith-based adoption agencies with traditional views about marriage and how such religious accommodations could impact same-sex couples, as well as how a failure to offer religious accommodations could impact children and foster families. This Part also addresses claims that the harms flowing from religious accommodations are particularly concerning in light of the exceptional nature of religious accommodations. Elsewhere, Professor Mark Rienzi and I have written about how religious exemptions are just a form of “as-applied” challenges offered as a default remedy elsewhere in constitutional adjudication.3 Courts regularly provide exemptions from generally applicable laws for other First-Amendment-protected activity, such as expressive conduct, that mirror the exemptions critics fear in the context of religious exercise. A survey of all RFRA decisions after Hobby Lobby indicates that even after that hot-button case was decided, cases dealing with religious-exemption requests remain much less common than cases dealing with other expressive claims and are less likely to result in invalidation of government actions.4 This indicates that critics’ concerns about religious exemptions have not been borne out as some contributors to this volume feared they would be.
I. A Debate About Where the Balance of Harm Lies
As Professor Wilson explains in her introduction, “the family encapsulates in miniature the driving concern after Hobby Lobby and Zubik: the potential for harm to others when society gives thick protection to religion.”5 Within this microcosm of the larger community, the debate about whether religious accommodations alleviate or cause harm has taken on new zeal in the wake of hot-button Supreme Court cases.
As Professor Michael Helfand explains in Chapter Two, the narrative around the Federal Religious Freedom Restoration Act (“RFRA”) “originat[ed] in a commitment to protect vulnerable religious minorities.”6 However, this narrative has “morphed” and “the public perception of RFRA has now been radically reformulated” such that the “new narrative no longer sees RFRA as primarily in the service of vulnerable religious minorities, but primarily as a tool deployed by far more secure religious majorities.”7 Scholars in The Contested Place debate whether this new narrative of harm flowing from religious accommodations is warranted.
For example, in Chapter One, Professor Elizabeth Sepper writes that “RFRAs create serious risks for disadvantaged groups and religious minorities in particular.”8 She also asserts that “public concern over religious exemptions for businesses reflects a core constitutional principle that prohibits the government from shifting significant costs onto some citizens to grant religious accommodations to others.”9 Similarly, Professor Michele Goodwin makes the following argument in Chapter Three:
. . . [R]eligion [is] being used to justify harming women, people of color, members of the LGBTQ community, and even inflicting injury on children. Frequently, those who wish to (or do) impose harms on others in the name of religion assert an exception granted by statute or claim the Constitution gives them the capacity to do so.10
Some examples of harm to third parties flowing from religious accommodations are clearer and do not give rise to much debate among the volume’s contributors. Others are much more hotly contested, and some authors point out ways in which third-party harms are exaggerated or could be avoided by different government policy choices. A summary follows of some of the discussion about the relationship between religious accommodations and harms to others.
A. Issues in Childrearing: Faith Healing, Corporal Punishment, and Circumcision
Professor James Dwyer argues in Chapter Eight that one particularly high-stakes religious accommodation area involves the rights of children. He asserts that we should not allow parents to do things for “a religious reason” that otherwise would be “very bad for the child.”11 Otherwise, he argues that policy “denigrat[es] . . . the child to the status of property or appendage of parents.”12
Along similar lines, Dr. Paul Offit raises medical concerns associated with allowing parents to refrain from providing medical treatment to children based on their religious beliefs. In Chapter Twelve, Offit discusses some religious groups who “pray instead of giving insulin for diabetes” and who “pray instead of giving antibiotics for meningitis.”13 Offit also describes at length ways in which religious objections to vaccination—particularly the vaccine for measles—has caused harm for children.14 Sixty years ago, three were between three and four million cases of measles cases in the United States, resulting in 48,000 hospitalizations and 500 deaths per year.15 Those who died were typically children, and the causes were dehydration, inflammation of the brain, or pneumonia. Then the vaccine for measles was introduced in 1963, and by 1983 only 1,500 cases of the measles were reported.16
In the late 1980s and 1990s, resistance to vaccinations allowed the disease to come “roar[ing] back.”17 Offit focuses on one case study in Philadelphia, where religious groups who believed in faith healing—such as the Faith Tabernacle Church—were at the center of a measles epidemic.18 This outbreak resulted in 486 church members being affected and six children dying.19 Among nonchurch members, 938 people were infected and three children died.20 “The attack rate in church members was about one-thousand-fold greater than in the surrounding community.”21 The church members’ resistance to treating their infected children ultimately resulted in the city turning to coercive treatment methods, including compulsory vaccinations for children.22 Offit points to this case study as an example of why religious exemptions to child abuse and neglect laws should not be allowed.
Professors Robin Wilson and Shaakirrah Sanders also address faith healing, along with corporal punishment, in Chapter Thirteen. Professors Wilson and Sanders point to empirical evidence indicating a statistically significant increase in support of spanking children among parents who adhere to certain religious belief.23 Professors Wilson and Sanders point to mixed opinions in social science literature regarding negative impacts (if any) that result from spanking.24 However, the social science that Professors Wilson and Sanders rely on clearly demonstrates that negative consequences flow from harsher and more extreme forms of corporal punishment. These negative consequences for children can include increased depression, suicide, criminal behavior, participation in domestic violence, criminality, and delinquency.25
Regarding faith healing, Professors Wilson and Sanders summarize a national study reviewing 172 deaths of children in which faith-healing parents denied their children medical care. Of these children, 146 would have had a ninety-percent chance of survival if they had been treated using modern medicine.26 Sixteen of the children had a prognosis that was unclear, and ten of the 172 children likely would have died even if the parents had used modern medicine.27 Professors Wilson and Sanders assert that “the distinction between preventable and unavoidable deaths matters to the state’s police power.”28
None of the contributors in this volume appear to disagree that faith healing or corporal punishment can, at times, directly lead to deadly consequences for children. In fact, Eric Rassbach acknowledges in Chapter Seven that “the decisions parents make sometimes have heart-wrenching costs for children.”29 However, Rassbach cautions that “society risks a grave threat to the religious identities of children—and faith communities—when it too readily supplants parents.” Rassbach notes that “if the government were given power to prevent parents from transmitting their faith to their children, religious minorities might be eliminated rather quickly.”30
Using the example of male circumcision as a heuristic, Rassbach argues that this is a parental practice often motivated by religion that must be protected by “those who care about the religious practices of Jewish and Muslim Americans,” who would be most impacted by laws that prohibited this practice.31 Rassbach notes that “it is precisely because government bans on religiously motivated male circumcision are so obviously an overreach that hypothesized bans provide a useful test of normative theories of the law of religious freedom or the law of the family.”32 Thus, Rassbach uses the circumcision example to argue that “treating third-party harms as an impervious boundary around fundamental rights goes too far.”33
The chapters on child-rearing make clear that courts and legislatures will likely be called upon in the future to consider the boundaries of both religious liberty and parental rights when child welfare questions are at stake. It is notable that most of the concerns regarding third-party harms arise in the context of specific exemptions for certain child-rearing practices politically and voluntarily crafted by legislatures, rather than general exemption schemes under the Constitution or statutes like RFRA, and applied by the courts. As Professors Wilson and Sanders acknowledge in their chapter, “states have the power to safeguard children” if they choose to do so, religious liberty protections notwithstanding.34
B. Polygamy and Harms to Women and Children
Polygamy and religious exemption claims have a long history in the United States. While the issue primarily arose in the context of Mormon polygamy in the 1800s, Professor John Witte observes in Chapter Seventeen how the issue remains relevant today in America and in other Western countries in the context of various Muslim, Hmong, and Fundamentalist Mormon religious denominations.35
In Chapter Twenty-Four, Professor Patrick Parkinson evaluates the status of legal marriage in the wake of the acceptance of same-sex marriage in Australia and Europe. He believes that the lack of “any convincing narrative about what marriage is” could give rise to credible claims for polygamy.36 He points to court cases in Australia that paved the way for Parliament to either “enact a law for same-sex marriage or to recognize polygamy.”37 Professor Maura Irene Strassberg also notes in Chapter Eighteen that “liberalized social attitudes towards sexuality and legal recognition of same-sex sexual relations and marriage,” combined with other factors, “has led both the public and the legal community to question whether criminalization of polygamy is still constitutional.”38
But both Professor Witte and Professor Strassberg argue that there are continued modern justifications for denying religious exemptions for polygamy, and these justifications find their strongest force when rooted in evidence about harm to women and children who participate in polygamy.
For example, in Chapter Seventeen Professor Witte points to cross-cultural study of polygamy in more than 170 countries that found that:
[P]olygamous communities suffer from increased levels of physical and sexual abuse against women, increased rates of maternal mortality, shortened female life expectancy, lower levels of education for girls and boys, lower levels of equality for women, higher levels of discrimination against women, increased rates of female genital mutilation, increased rates of trafficking in women, and decreased levels of civil and political liberties for all citizens.39
Professor Witte acknowledges the counterargument that claims of abuse in the context of monogamous marriage have not led to the abolition of monogamy but only to the closer policing and punishment of each harm as it occurs. Thus, some argue that the same should not also be true for polygamy, where law enforcement closely polices and punishes harms “when they occur.”40 But he asserts that if wives and children really do suffer from increased levels of abuse, neglect, or deprivation, then we ought to give them stronger, built-in protections that should be scrupulously enforced.41
In Chapter Eighteen, Professor Maura Strassberg argues that preventing child sexual abuse would be a compelling state interest if a sufficient connection to polygamy can be shown, but she acknowledges that “[t]he problem remains whether existing evidence is sufficient to establish a compelling state interest in criminalizing . . . polygamy”—either certain polygamous practices by certain groups or all practices.42 For example, Professor Strassberg points to a Utah Supreme Court case, State v. Green, finding that crimes such as “incest, sexual assault, statutory rape, and failure to pay child support” are crimes that “often coincided with polygamy.”43 In both Green and subsequent case law, the courts determined on rational-basis review that preventing these crimes was a government interest sufficient to reject a constitutional challenge to the state’s criminalization of polygamy. The courts acknowledged the evidence of a causal connection between polygamy in general and these crimes, and observed that these crimes were largely anecdotal in nature and limited to polygamy as practiced by certain religious groups in the Western United States. Nevertheless, even this sort of anecdotal connection was sufficient for rational-basis review. Professor Strassberg acknowledges that “not every individual in every polygamous family will suffer” relevant harm.44 However, she ultimately agrees with the evidentiary findings of a British Columbia Supreme Court, which held that conglomerated harms stemming from polygamy worldwide justified criminalization of this practice.45
Professor Strassberg points to other, contrasting cases, including Brown v. Buhman,46 where under the more rigorous review of strict scrutiny, the court noted a paucity of evidence showing a causal relationship or even noteworthy correlation between polygamy and abuse of women and children. Professor Strassberg also notes work by anthropologist Janet Bennion, who has observed polygamous family life in various sects and who has found a “rich diversity of polygamist lifestyles” with well-functioning families and communities.47 However, Bennion also notes that her observations of polygamy do not provide the final answer to the connection between polygamy and abuse, and that a “thorough investigation of polygamy must be made to clarify whether only a few miscreants are guilty of abuse or all polygamous families contain abuse.”48
The authors note that polygamy laws in the United States do not contain religious exemptions, and, thus, the debate centers more on the justification for such laws and whether they are inappropriately underenforced. This discussion highlights how important an evidentiary demonstration of harm can become for the ultimate resolution of these issues.
C. Access to Contraception and Other Family Planning Methods
The balance of harm to third parties is hotly contested among contributors when it comes to contraceptive access. For example, Professor Michele Goodwin argues in Chapter Three that one of the great costs of religious exemptions arises out of the increasing incidence of pharmacists’ refusals, based on assertions of conscience, to prescribe women such medications as the morning-after pill. Professor Goodwin asserts that there is “a disturbing trend” in which “pharmacists are refusing to dispense or prescribe birth control and emergency contraception (“EC”) based on religious or moral objections.”49 She quotes an article from 2005 asserting that “more and more pharmacists are becoming aware of their right to conscientiously refuse to pass objectionable medications across the counter,” predicting that “we are on the very front edge of a wave that’s going to break not too far down the line.”50 She argues that as these “religious objections escalate, women suffer the consequences.”51
In a similar vein, Gregory Lipper argues in Chapter Five that under the Trump Administration, “religious entities are likely to demand even broader exemptions from laws designed to secure health benefits.”52 Lipper points out that “reproductive control is crucial to the lives of many women, families, and children.”53 He argues that religious objections created a harmful “epicenter of opposition” that rendered commonsense solutions impossible.54
Professor Mark Rienzi takes a different approach from Professors Goodwin and Lipper in Chapter Four. Professor Rienzi argues that we can have a society that both protects religious conscience in health care and provides access to preventative services to women. What’s more, he asserts that “the far greater threat to health care access comes not from pharmacists who cannot dispense certain contraceptives or from employers who cannot include them in a health plan, but from government policies that unwittingly reduce access rather than expand it.”55
Professor Rienzi draws on a case study involving “eight years of litigation” in Illinois over the government’s attempt to penalize pharmacists with conscientious objections to dispensing certain types of drugs.56 During this litigation, “the government tried many different approaches to find women who had actually been stopped from getting the contraception they wanted because of a religious objection.”57 These methods included sending letters to physicians in Illinois asking them to report any pharmacy or pharmacist who refused to provide contraceptives, creating special websites to allow women to lodge complaints against pharmacies, posting signs and hotlines in every pharmacy in the state advising women how to inform state officials if they had problems obtaining contraception, and providing specially trained government workers to assist women in lodging complaints.58 Despite all of these efforts to unearth a contraceptive access problem, the government was unable to marshal any evidence of a real obstacle to access.59 The court found “no evidence of a single person” who could not obtain the contraceptives she wanted.60
On the other hand, Professor Rienzi points out that at least one pharmacy in Illinois closed because of Illinois’ policy, leaving one town without a pharmacy for years.61 Several other pharmacists were suspended or lost their jobs.62 Others chose to leave the profession in Illinois and practice in friendlier states.63 This happened at a time when Illinois was proclaiming a shortage of pharmacists.64 Thus, “in an effort to solve a problem that did not in fact exist, and in an effort to purge the pharmacy profession of pharmacists who could dispense all but a handful of drugs, these states actually pushed healthcare providers out of the field entirely.”65 Professor Rienzi concludes by arguing that “forcing religious pharmacists to distribute contraceptives will not increase the supply of contraceptives—but it will decrease the supply of pharmacies and pharmacists.”66
The discussion between Professors Goodwin, Greg Lipper, and Professor Rienzi illustrates an important point: when courts or policymakers are considering alleged negative externalities that flow from religious accommodations, it is important to also consider negative externalities that result from failing to provide religious accommodations and positive externalities (or social goods) that result from accommodations. This issue is particularly relevant in the foster care and adoption context, discussed in Section II below.
II. Faith-Based Adoption and Access for LGBTQ Parents
None of the chapters in The Contested Place discuss adoption or foster care at length. But this is an area of the law that increasingly raises questions at the crossroads of family law and religious liberty. Currently, one of the most pressing questions is whether faith-based agencies should be allowed to provide services to foster children in partnership with the government if they are unwilling to certify certain families (including unmarried couples or same-sex couples) for adoption or foster care. A national debate on this question has swept the country in the wake of closures of faith-based agencies, state and federal legislation aimed at preventing further closures, and new litigation challenging government partnerships with faith-based organizations including a current cert petition pending before the Supreme Court. This section provides background context about the norms of adoption and foster care, an update on relevant developments, and an in-depth look at what the litigation thus far illustrates about negative externalities that can befall families and children if faith-based agencies are not accommodated.
A. Legal Framework for Faith-Based Adoption and Foster Care
There are two different forms of adoption in the United States: private adoption and public adoption. Private adoption occurs when a parent, such as a young teen mom hoping to provide her baby with a different life, willingly gives her child up for adoption. Private adoption is often very expensive for couples, and there are sometimes very long waiting lists for babies being placed through private adoption.67
In contrast, public adoption is adoption of foster children who have become wards of the state as a direct result of having suffered severe abuse or neglect in their own homes.68 By definition, these children are the most vulnerable children in society. The children who go into foster care often require significant additional services and counseling to help address severe trauma.69 Additionally, the families that ultimately foster or adopt these children also depend heavily on agencies to support them with services needed to adequately care for these children. Agencies that provide foster and public adoption services can do so only in partnership with the government.70
Fueled in part by the opioid epidemic, we face a national crisis in a shortage of foster families to care for children. On any given day, over 400,000 foster children across the United States are wards of the state.71 Of these, over 100,000 are eligible and waiting to be adopted.72 Every year, 20,000 children age out of foster care never having found a permanent family to care for them.73 This number is on the rise, and one study indicated that youth who age out are primarily minority children and are much more likely to end up in poverty, without an education, and even out on the streets.74 The number of children needing foster care has increased up to thirty percent in some states.75
Because the government cannot find enough foster families to care for and adopt children on its own, it relies on private agencies to help accomplish this goal. The functions of private agencies vary slightly from state to state, but a few generalizations are applicable.
First, the government generally contracts with a wide range of private agencies. Second, prospective foster parents approach an agency seeking to be certified to become foster parents. Third, the agency assesses whether it will be a good fit for that prospective family, or whether the family would be better served by a different agency. There are agencies that specialize in placement of Native American children with Native American families,76 agencies that specialize in exclusively serving LGBTQ populations,77 agencies that focus on finding homes for black children,78 agencies that specialize in reaching out to the Latino community and have language expertise,79 agencies specializing in placements for pregnant youth,80 and agencies that have specialties in behavioral health or special medical issues,81 and faith-based agencies. It is not uncommon for agencies to refer families to agencies that will be a good fit for them, as well as to refer families for other reasons, such as geographic proximity.
Fourth, assuming there is a good fit with the agency and family, child-placing agencies then perform an in-depth home study assessing the characteristics that make the family suitable to adopt or foster. In many (perhaps all) states, such certification by a foster agency (or at least a recommendation of certification by a foster agency) is necessary for the state to be willing to place foster children with would-be foster parents.82 This process involves an agency performing a home study with a prospective foster family, which then involves an exhaustive and personal review of the family’s characteristics and eligibility. In Michigan, for example, the state requires agencies to assess the “[s]trengths and weaknesses” of the parents and the “[s]trengths of the relationship” between the couple, including “level of satisfaction” and “stability” of the relationship. Agencies are also required to assess the parents’ “roles,” “involvement,” “styles,” “childrearing techniques,” and “values.” Assessments must also include an evaluation of the “[r]ole of religion in the family” and the “[r]elationship history” of the parents.83 These requirements appear to be fairly typical of all states. Indeed, the Human Rights Campaign Foundation has stated that the “homestudy serves as an evaluation tool that allows [an agency] to determine if a prospective resource parent has that capability to provide a child with a safe and nurturing home,” which should be based on a “thorough evaluation.”84 Based on these inquiries, the agency must provide written findings and a recommendation as to whether the home is suitable for placing foster children.
Generally, agencies do not receive any marginal increases in funding directly tied to the volume of home studies performed. Rather, funding flows much later in the process—after a home study has been performed, a family has been certified, the agency has accepted a referral from the state of a foster child, and that child has been placed with a foster family. Only then do payments start arriving for the child on a per diem basis.85 But whether an agency performs two home studies or twenty, the amount of money the agency receives from the government does not change. A family who had a home study performed may never ultimately adopt or foster a child if they couldn’t find a child who fit their criteria or if they moved or had other changed life circumstances.
Conflicts with respect to faith-based agencies have occurred in the context of this home study process. Because of traditional views about marriage, certain faith-based agencies cannot provide a written endorsement of unmarried couples or same-sex couples. However, faith-based adoption agencies have been willing to refer these families elsewhere to ensure that they are still able to foster or adopt. And in Michigan, Catholic Charities has been clear that unmarried or gay couples may still adopt children in the agency’s care so long as they receive their certification through another agency.86
B. Legislative and Litigation Developments Regarding Faith-Based Agencies
A number of legislative developments in response to agency closures are relevant to the national debate about the place of faith-based foster agencies. Faith-based adoption agencies closed their doors in Boston, Illinois, California, and the District of Columbia. The first instance occurred in 2006 in Massachusetts after the state legalized same-sex marriages, and Catholic Charities in Boston shut down its foster care program.87 Catholic Charities closed in the District of Columbia in 2010 and in Illinois in 2011 under similar circumstances.88 A faith-based agency also closed its adoption program in San Francisco in 2006.89
In response to these closures, ten states passed legislation with specific religious exemptions designed to protect the ability of faith-based agencies to continue providing adoption and foster services consistent with their religious beliefs.90 The most recent states to pass this legislation in 2018 were Kansas and Oklahoma. Similar legislation has been introduced at the federal level with a bill titled the Child Welfare Provider Inclusion Act of 2017.91 Others, including Professor Wilson, are working on other initiatives modeled on the Child Care and Development Block Grant Program, which would give money directly to families ready to adopt.92
C. What Litigation Reveals About Harm to Children
There has been litigation regarding the application of one state bill protecting faith-based agencies in Michigan, as well as litigation in Philadelphia when the City sought to end its foster care program with certain faith-based agencies. These lawsuits bring to light some evidence about harm to third parties that can result when faith-based agencies are not accommodated.
In March 2018, the city of Philadelphia put out an “urgent call” for 300 new foster families. As part of that call, the City acknowledged that it currently has 250 children in group homes right now that need to be in foster homes.93 The same month it put out this call, the City abruptly barred Catholic Social Services from receiving additional foster care placements. As reported by the Wall Street Journal Editorial Board, “Catholic Social Services works with children regardless of race, gender or sexual orientation. But on Catholic religious grounds the charity won’t certify same-sex or unmarried couples as foster parents, instead referring them to another state-approved organization.”94 More than “two dozen alternative agencies exist, and Catholic Social Services says no gay couples have even sought its help for certification, much less filed a complaint after being turned away.”95 The Editorial Board went on to argue:
Philadelphia’s coercion hurts the city’s most vulnerable children and the families who want to care for them. One of the plaintiffs in this case is Cecelia Paul, who has opened her home to more than 130 children over the past 46 years. Philadelphia honored her as one of its foster parents of the year in 2015. But because Mrs. Paul is certified through Catholic Social Services, her home has been vacant since April.96
Similarly, Kathleen Parker at the Washington Post reported, “On a typical day, Philadelphia’s [Catholic Social Services] serves on average more than 120 foster children and supervises about 100 homes” and it “worked with more 2,200 at-risk children” in 2017. Parker states, “[t]hat’s a lot of slack for other agencies to pick up . . . . Given the immense good that [Catholic Social Services] and other religious charities do, surely there is another way intelligent people in the City of Brotherly Love (and elsewhere) can resolve their differences.”97
Philadelphia’s actions also resulted in a young, special needs child being withheld from his former foster mother for a prolonged period of time while he languished in a temporary home. As one report explained, “[a]fter being yanked from his foster family, the boy spent weeks languishing in temporary homes instead of being returned to his home because of the agency’s religious beliefs. During that time, he didn’t receive the therapy and specialized care he needs.” Ultimately, the child was returned to his adoptive family after an emergency motion was filed as part of the lawsuit, but the city’s policy that led to this outcome “remains in place, affecting countless other children and parents.”98
Another foster mother in Philadelphia, who is a party to the lawsuit, wrote that her special needs children would be taken from her if Catholic Social Services had to close its program. She described her fear and confusion as to why this was happening and why an agency whose beliefs she shared was essentially being targeted as unwelcome in her own city.99
LGBTQ advocates argue that providing any religious accommodations could result in harms or further obstacles for LGBTQ couples who are qualified and willing to foster or adopt.100 Further, the ACLU argues that the very fact these agencies are able to operate in ways that the government itself could not operate is a harm to certain couples, who also experience hurt or stigma when they cannot foster or adopt with an agency of their choice.101 The acute shortage of qualified families for foster children right now gives governments ample reason to focus on finding ways to find more qualified foster parents who want to provide homes for children. This often involves ensuring a range of foster care and adoption agencies working to recruit and support different segments of the population, while simultaneously working to reduce any real obstacles to fostering or adopting faced by any couples, including LGBTQ couples. In some cases, this may include providing funding and support for the creation of even more foster or adoption agencies. This is what states such as Michigan have worked to accomplish by providing a range of options (including agencies that specialize in serving LGBTQ populations), while still ensuring the inclusion of faith-based agencies.
But it is difficult to see how forcing faith-based agencies to close their program does anything to provide more options to LGBTQ parents, as opposed to just providing fewer options to other families. As the Wall Street Journal Editorial Board noted, some families who foster or adopt have a special relationship with the faith-based agency they work with. Catholic Social Services in Philadelphia, for example, “provides its foster families with holistic support, building relationships that often last for years. The group’s social workers are there for midnight phone calls and weekend emergencies,” and some of these families “cannot imagine starting from scratch and fostering children without them.”102 Perhaps that is why in Michigan, where the ACLU is suing to forbid the state from partnering with faith-based agencies who use religious criteria, the Michigan Department of Health and Human Services stated that “if faith-based agencies are not allowed to operate according to their religious principles, they will shut down, which can have the effect of reducing the number of available families. Such a result will do nothing to help a single child find a home.”103
At the very least, these disputes highlight the way in which harm must be balanced on both sides of the ledger when government actors seek solutions. Courts and legislatures should not simply focus with tunnel vision on alleged negative externalities that flow from religious accommodations when significant externalities may also occur when religious charities are not able to continue serving vulnerable populations. The foster and adoption cases demonstrate how important it is to get that balance right, and how costly it could be if we get it wrong.
D. Religious Exceptionalism or First Amendment Parity
Some of the authors’ concerns about religious accommodations appear to be fueled in part by the assumption that such accommodations are exceptional or anomalous under the law and that they result in problematic special treatment for religious believers. For example, Professor Goodwin argued that “religious exceptionalism casts a hierarchy within law and establishes the ordering of legal rights” where “religiously-based rights and individuals protected by [religious accommodations] need not conform to general principles, normal rules, or nondiscriminatory practices.”104 Professor Goodwin then asks, “[a]re religious interests among groups and individuals so vitally distinct that their protection permits harm against all other citizens?”105
However, as Professor Rienzi and I have argued elsewhere, the claim of unfair favoritism regarding religious exemptions is not correct. In fact, religious exemption requests are just a version of what is generally thought of as one of the most common, modest, and preferred modes of constitutional adjudication: the as-applied challenge. This is true regardless of whether the religious exemptions are offered constitutionally or through statutes such as RFRA. Furthermore, under this form of as-applied adjudication, courts regularly provide identical exemptions in the context of expressive conduct that critics fear in the context of religious-exercise protections.106
Professor Sepper questions whether courts will be able to appropriately handle religious accommodation claims, and she asserts that it is a “leap of faith” after Hobby Lobby to assume that courts will apply an appropriate level of scrutiny when analyzing these claim.107 However, in my recent article with Professor Rienzi, our research suggests that expressive claims are much more pervasive than religious claims, both in absolute terms and as a percentage of all reported cases. We also provide a new survey of all federal RFRA decisions since Hobby Lobby that analyzes how the Supreme Court’s decision in Hobby Lobby impacted win rates of reported religious exercise cases. The data does not demonstrate a dramatic increase in the win rate of religious exercise litigants under RFRA. This may be explained, in part, because there are important legal limitations on successful religious claims. Ultimately, the findings are not consistent with the notion that religious objections are dramatically increasing in volume or are much more likely to prompt a court to strike down government action under RFRA after Hobby Lobby.108
As Eric Rassbach notes in Chapter Seventeen, few, if any, civil rights protections “create no externalities to others.”109 Religious accommodations are no exception. The dialogue in The Contested Place helps illuminate how important it is that externalities have some clear evidentiary basis. In some contexts, such as faith healing, the potential for harm is clear, and state governments have broader authority to legislate to prevent such harms if they choose to do so. In other contexts, such as access to contraception, the inevitability of harm is more hotly contested, and some contributors argue that the government has alternatives to avoid any significant harm while still accommodating religious objections.
The Contested Place dialogue also highlights the need to evaluate harm on both sides of the ledger. This includes consideration of harm that results when religious individuals or organizations are not accommodated. In the pharmaceutical or medical context, for example, lack of accommodations may ultimately result in fewer providers and fewer organizations willing to provide care. And as discussed in this Review, lack of religious accommodations in the adoption or foster care context may result in fewer agencies finding homes for children in need.
The family, as a microcosm of our broader society, provides a familiar context in which to evaluate many of these pressing concerns regarding religious accommodations. The Contested Place provides an important discussion highlighting a range of perspectives on these issues, and it will serve as a valuable contribution for years to come.
1. See generally Robin Fretwell Wilson, The Contested Place of Religion in Family Law (2018); see also Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343, 361 (2014); Nelson Tebbe, Religious Freedom in an Egalitarian Age 49–70 (2017); Nelson Tebbe, Micah Schwartzman, & Richard Schragger, How Much May Religious Accommodations Burden Others?, in Law, Religion, and Health in the United States 215–39 (Holly Fernandez Lynch, et al. eds., 2017); Nelson Tebbe, Micah Schwartzman, and Richard Schragger, When Do Religious Accommodations Burden Others? in The Conscience Wars: Rethinking the Balance Between Religion, Identity, and Equality (Susanna Mancini & Michel Rosenfeld eds., 2018); Frederick Mark Gedicks & Rebecca G. Van Tassell, RFRA Exemptions from the Contraception Mandate: An Unconstitutional Accommodation of Religion, 49 Harv. C.R.-C.L. L. Rev. 343 (2014); Andrew Koppelman & Frederick Mark Gedicks, Is Hobby Lobby Worse for Religious Liberty than Smith?, 9 St. Thomas J.L. & Pub. Pol’y 223 (2015); Micah Schwartzman et. al., The Costs of Conscience, 106 Ky. L.J. 781 (2018); Douglas NeJaime & Reva B. Siegel, Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics, 124 Yale L.J. 2516, 2524 (2015).
2. See, e.g., Stephanie H. Barclay, First Amendment “Harms,” 95 Ind. L. J. (forthcoming 2020); Carl H. Esbeck, When Religious Exemptions Cause Third-Party Harms: Is the Establishment Clause Violated? 59 J. Church & State 357 (2016); Thomas C. Berg, Religious Exemptions and Third-Party Harms, 17 Fed. Soc. Rev. 50 (2016); Thomas C. Berg, Religious Accommodation and the Welfare State, 38 Harv. J.L. & Gender 103 (2015); Marc O. DeGirolami, Free Exercise by Moonlight, 53 San Diego L. Rev. 105 (2016); Richard W. Garnett, Accommodation, Establishment, and Freedom of Religion, 67 Vand. L. Rev. En Banc 45 (2014); Thomas C. Berg, Religious Accommodation & the Welfare State, 38 Harv. J. L. Pub. Pol’y 103, 145 (2015); Mark Storslee, Religious Accommodations, The Establishment Clause, and Third-Party Harm, 86 U. Chi. L. Rev. 871 (2019); Christopher C. Lund, Religious Exemptions, Third-Party Harms, and the Establishment Clause, 91 Note Dame L. Rev. 1375, 1383-84 (2016).
3. Stephanie Barclay & Mark Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595 (2018).
5. Wilson, supra note 1, at 8.
6. Id.at 44.
7. Id. at 46.
8. Id. at 36.
10. Id. at 61–62.
11. Id. at 210.
12. Id. at 211.
13. Id. at 298.
14. Id. at 286.
16. Id. at 286–87.
17. Id. at 287.
18. Id. at 304.
22. Id. at 292, 293, 304.
23. Id. at 315.
24. Id. at 319.
25. Id. at 316.
26. Id. at 321.
28. Id. at 322.
29. Id. at 182.
31. Id. at 190.
32. Id. at 190.
33. Id. at 189.
34. Id. at 323.
35. Id. at 447.
36. Id. at 639.
37. Id. at 619.
38. Id. at 489.
39. Id. at 461.
40. Id. at 463.
42. Id. at 481.
43. Id. at 477, citing State v. Green, 99 P.3d 820, 830 (Utah 2004).
44. Id. at 490.
45. Id. at 482–87.
46. 822 F.3d 1151, 1170 (10th Cir. 2016).
47. Wilson, supra note 1, at 481.
49. Id. at 71.
50. Id. at 65.
51. Id. at 78.
52. Id. at 129.
53. Id. at 115.
55. Id. at 89.
56. Id. at 94.
61. Id. at 98.
65. Id. at 99.
66. Id. at 89.
67. See, e.g., The Differences Between Private and Foster Adoption, American Adoptions, https://www.americanadoptions.com/adopt/private_or_state_adoption (last visited Sept. 3, 2018).
68. Agency vs. Independent Adoption, Parents.com, https://www.parents.com/parenting/adoption/facts/agency-vs-independent-adoption/ (last visited Sept. 3, 2018).
70. Gillian Friedman, Religious Liberty and LGBT Rights: Solutions Elusive in Adoption Conflict, Deseret News (July 26, 2018), https://www.deseretnews.com/article/900025944/with-child-welfare-dragged-into-the-culture-war-over-lgbt-and-religious-rights-is-compromise-possible.html (“[T]he issue is not really about funding, but state contracts, without which faith-based agencies cannot provide public adoption and foster care services. Even if the agencies could find alternate sources of funding, losing government contracts would bar them from providing these services on behalf of the state.”)
71. Adoption Statistics, Adoption Network, https://adoptionnetwork.com/adoption-statistics (last visited Sept. 4, 2018).
72. Id.; Asher Fogle, Surprising Facts You May Not Know About Adoption, Good Housekeeping (Dec. 8, 2015), https://www.goodhousekeeping.com/life/parenting/a35860/adoption-statistics/.
73. Friedman, supra note 70.
74. Erik Eckholm, Offering Help for Former Foster Care Youths, N.Y. Times (Jan. 27, 2007), https://www.nytimes.com/2007/01/27/us/27foster.html.
75. Brian Miller, How Vouchers can End the Culture War over Adoption, Forbes, July 24, 2018; Emily Birnbaum & Maya Lora, Opioid Crisis Sending Thousands of Children into Foster Care, The Hill (June 20, 2018), https://thehill.com/policy/healthcare/393129-opioid-crisis-sending-thousands-of-children-into-foster-care.
76. Sault Ste. Marie Tribe of Chippewa Indians, Child Placement, https://www.saultribe.com/membership-services/acfs/child-placement (last visited Sept. 4, 2018) (“The Sault Tribe Binogii Placement Agency is our tribal child placement agency. The agency is licensed by the state of Michigan to provide foster care and adoption services to children ages 0–19 who reside within the tribe’s seven-county service area. The agency services children who are enrolled or eligible for enrollment as Sault Ste. Marie Tribe of Chippewa Indians members and Sault Tribe households.”).
77. See, e.g., The History of Ruth Ellis Center, Ruth Ellis Center, http://www.ruthelliscenter.org/history/ (last visited Sept. 4, 2018) (boasting a “residential foster care program specifically for LGBTQ youth”); Crossroads Programs Inc., Mighty Cause, http://www.mightycause.com/organization/Crossroads-Programs (last visited Sept. 4, 2018) (offering placements in “specialized Foster Homes for self-identified lesbian, gay, bisexual, transgender, and/or questioning (LGBTQ) youth, [providing] them with the support and sensitivity necessary to address thier [sic] unique needs”).
78. Find a Licensed Agency, Michigan Adoption Resource Exchange, http://mare.org/For-Families/New-to-Adoption/Find-a-Licensed-Agency (listing the agency Homes for Black Children) (last visited Sept. 4, 2018); Minority Specializing Agency and Resource Directory 4, AdoptUSKids, https://web.archive.org/web/20170509213138/https://www.adoptuskids.org/_assets/files/NRCRRFAP/resources/minority-specializing-agency-directory.pdf (discussing how Homes for Black Children focused on the “adoptive placement of black children”).
79. El Concilio, Concilio, http://elconcilio.net/ (last visited Sept. 5, 2018) (“Founded in 1962, the Council of Spanish Speaking Organizations of Philadelphia, Inc. (Concilio) is the oldest Latino organization in Philadelphia and has a well-established reputation as a leader for the Latino community family services.”).
80. Mother/Baby Host Home, Pennsylvania Mentor, https://www.pa-mentor.com/who-we-serve/children-and-families/motherbaby-host-home/ (last visited Sept. 5, 2018).
81. CRR Host Home, Pennsylvania Host Home, https://www.pa-mentor.com/who-we-serve/children-and-families/crr-host-home/ (last visited Sept. 5, 2018); Therapeutic Foster Care, Pennsylvania Mentor, https://www.pa-mentor.com/who-we-serve/children-and-families/therapeutic-foster-care/ (last visited Sept. 5, 2018).
82. Memorandum of Law in Support of Plaintiffs’ Motion for a Preliminary Injunction, Buck v. Gordon, No. 1:19-CV-00286 (Apr. 16, 2019), https://s3.amazonaws.com/becketnewsite/2019-04-16-6-Memo-ISO-MPI.pdf.
83. Memorandum of Law in Support of Plaintiffs’ Motion for a Preliminary Injunction, Buck v. Gordon, No. 1:19-CV-00286 (Apr. 16, 2019), https://s3.amazonaws.com/becketnewsite/2019-04-16-6-Memo-ISO-MPI.pdf.
84. Perry, J.R., Promising Practices for Serving Transgender & Non-Binary Foster and Adoptive Parents, Human Rights Campaign Foundation 44 (2017), https://assets2.hrc.org/files/assets/resources/HRC_ACAF_Promising_Practices_Serving_Transgender_Non-Binary_Parents.pdf.
85. See, e.g., Child Care/Placement Agency Adoption Rates, Mich. Dep’t of Health & Hum. Serv.s, https://www.michigan.gov/mdhhs/0,5885,7-339-71551_7199-14181--,00.html (last visited Sept. 5, 2018).
86. See, e.g., Gillian Friedman, Why Children Have the Most to Lose in the Latest Battle Over LGBT and Religious Rights, Deseret News (July 10, 2018), https://www.deseretnews.com/article/900024362/why-children-have-the-most-to-lose-in-the-latest-battle-over-lgbt-and-religious-rights.html; Gillian Friedman, supra note 70.
87. Catholic Charities Pulls Out of Adoptions, Wash. Times (Mar. 14, 2006), https://www.washingtontimes.com/news/2006/mar/14/20060314-010603-3657r/.
88. Julia Duin, Catholics End D.C. Foster-Care Program, Wash. Times (Feb. 18, 2010), https://www.washingtontimes.com/news/2010/feb/18/dc-gay-marriage-law-archdiocese-end-foster-care; Manya A. Brachear, 3 Dioceses Drop Foster Care Lawsuit, Chi. Trib. (Nov. 15, 2011), http://www.chicagotribune.com/news/ct-xpm-2011-11-15-ct-met-catholic-charities-foster-care-20111115-story.html.
89. Cicero A. Estrella, San Francisco/Catholic Charities Scaling Back Its Role In Adoption Services, SF Gate (Aug. 3, 2006)., https://www.sfgate.com/bayarea/article/SAN-FRANCISCO-Catholic-Charities-scaling-back-2515267.php.
90. The states include North Dakota: N.D. Cent. Code § 50-12-07.1 (2003); South Dakota: SB149 (2017); Kansas: SB284 (2018); Oklahoma: SB 1140 (2018); Texas: HB3859 (2017); Mississippi: HB1523 (2016); Alabama: HB24 (2017); Virginia: Va. Code Ann. § 63.2-1709.3 (2012); Michigan: HB4188, HB4189, and HB4190 (2015); and South Carolina: HB4950, Section 38.29 (2018). See John Kelly, License to Discriminate: What to Watch for in 2019 with Faith-Based Protection Laws, Chronicle of Social Change (May 1, 2019), https://chronicleofsocialchange.org/child-welfare-2/faith-based-discrimination-in-child-welfare-what-to-watch-in-2019/33778.
91. H.R. Rep. No. 1881 (2017-2018), https://www.congress.gov/bill/115th-congress/house-bill/1881.
92. Miller, supra note 75.
93. Julia Terruso, Philly Puts Out “Urgent” Cal—300 Families Needed For Fostering, Inquirer (Mar. 8, 2018), http://www.philly.com/philly/news/foster-parents-dhs-philly-child-welfare-adoptions-20180308.html?arc404=true.
94. Editorial Board, Suffer the Little Children, Wall St. J. (May 22, 2018, 6:59 PM), https://www.wsj.com/articles/suffer-the-little-children-1527029941.
97. Kathleen Parker, Philadelphia’s Unnecessary War on Catholics, Wash. Post (May 22, 2018), https://www.washingtonpost.com/opinions/philadelphias-unnecessary-war-on-catholics/2018/05/22/0b6b1bd6-5e0e-11e8-9ee3-49d6d4814c4c_story.html?noredirect=on&utm_term=.003d5451fd04.
98. Bre Payton, This Woman’s Autistic Foster Son Was Ripped from Her Arms Because She Works with Catholics, Federalist (June 14, 2018), http://thefederalist.com/2018/06/14/womans-autistic-foster-son-ripped-arms-works-catholics/; Kathryn Jean Lopez, Foster Children in Philadelphia Deserve Better than Unnecessary Limbo as Religious-Liberty Dispute Lingers, Nat’l Rev. (June 12, 2018), https://www.nationalreview.com/corner/foster-children-in-philadelphia-deserve-better-than-unnecessary-limbo-as-religious-liberty-dispute-lingers/.
99. Sharonell Fulton, Opinion, My Faith Led Me to Foster More Than 40 Kids; Philly Is Wrong to Cut Ties with Catholic Foster Agencies, Inquirer (May 24, 2018), http://www.philly.com/philly/opinion/commentary/catholic-social-services-philadelphia-lawsuit-lgbtq-gay-foster-parents-adoption-sharonell-fulton-20180524.html?arc404=true.
100. Friedman, supra note 86.
102. Editorial Board, supra note 94.
103. Gillian Friedman, Judge Considers Whether to Dismiss a Case in the Latest Battle Over Religious Freedom and LGBT Rights, Deseret News (July 12, 2018, 1:04 PM), https://www.deseretnews.com/article/900024619/judge-considers-whether-to-dismiss-a-case-between-faith-based-adoption-agencies-and-lgbt-couples-heres-what-happened.html.
104. Wilson, supra note 1, at 85.
105. Id. at 68.
106. Stephanie H. Barclay & Mark L. Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, 59 B.C. L. Rev. 1595, 1597–98 (2018).
107. Wilson, supra note 1, at 32.
108. Barclay & Rienzi, supra note 106.
109. Wilson, supra note 1, at 189.