What does a bigot look like? According to a recent ad created by the Movement Advancement Project (“MAP”), bigots are lurking in child welfare organizations disguised as seemingly normal social workers. Beneath their kind exteriors, these people conceal a dark agenda to force gay or transgender children into conversion therapy, to impose corporal punishment with a leather belt, and to allow children to languish in foster care rather than be adopted by gay couples. The ad concludes with the dire warning, “When states allow decisions to be based on a worker’s individual beliefs, rather than the best interests of children, it’s children who pay the price.”
What is going on here? Are rogue child welfare workers stealthily imposing private prejudices on the children in their care?
In short: no. In reality, the situation is something quite guileless. In the wake of Obergefell, and given the increasing number of sexual orientation non-discrimination laws, many states (including Michigan, Virginia, Texas, and South Dakota) have passed legislation to make clear that faith-based child welfare organizations may continue to provide services to families and children as they always have done, without sacrificing religious beliefs, such as the notion that the best placement for a child is with a married mother and father. This belief is indeed a theological one, but it is also an anthropological one, supported by millennia of human experience, and a scientific one, supported by sound, contemporary social science.
Equating traditional views on marriage with racism, MAP and its allies find laws protecting faith-based organizations morally repugnant and claim that they are unconstitutional. In support of their position, the ACLU has filed a lawsuit challenging the constitutionality of Michigan’s statute, arguing that private agencies that perform a public function through a government contract (i.e., providing foster care and adoption services for children in the foster care system) may not discriminate based on religion or sexual orientation. The legal argument permitting generous religious exemptions is a well-worn one, and similar protections have long been upheld. Nevertheless, legal intimidation has worked well; some of the nation’s oldest child welfare providers voluntarily ceased adoption and foster care services in Illinois, Boston, and San Francisco in the face of legislation with no conscience protections.
What’s the Concern?
Lawsuits such as this one are a colossal waste of time and resources. To explain, let us first be quite clear about the nature of the concern raised in MAP’s ad and the ACLU’s lawsuit. There is no concern that same-sex adoption is prohibited. Indeed, it is allowed in all states. There is no concern that same-sex couples are unduly burdened and unable to find willing agencies or adoption professionals to serve them. The lawsuit acknowledges that the state agency itself cannot turn away same-sex couples. There is no concern that same-sex couples will be discouraged from adopting waiting children. In fact, according to a study by the Williams Institute at UCLA, same-sex couples raising children are four times more likely than their different-sex counterparts to be raising an adopted child, and six times more likely to be raising foster children. There is no concern that faith-based providers are imposing their values on the state or other private providers. There is no concern that families in the foster system are forced to work with faith-based providers against their own moral or religious convictions.
The essence of the argument is that if some faith-based organizations are allowed to operate in the public square according to their convictions, it will make it hard for all foster children to find loving “forever families.” Thus the tag line: “the children pay the price.” But, is this the case? Let’s look at some facts.
There are over 400,000 children living in the US foster care system. In 2015, 111,820 of those children were waiting to be adopted. The average age of a waiting child is 7.6 years. The average time the waiting child has been in foster care is almost three years. In the same year, 20,789 children aged out of the foster care system, having never been reunited with their families or adopted. Sadly, any contact with the foster care system often serves to perpetuate cycles of poverty, crime, neglect, and abuse.
Having over 100,000 children in foster care waiting to find a permanent home is a national tragedy, and it is right to demand that it be as easy as possible to match them with loving families. However, it is also the case that there are over two million couples in the United States waiting to adopt, and an estimated two million LGBT people interested in adoption. Given the millions of people waiting to adopt, there should be more than enough prospective adoptive parents—same-sex and opposite-sex couples—to welcome these children. And yet, the children wait, and they suffer. But it is not because of lack of loving, qualified “forever families,” and it is not because some faith-based providers prioritize married, heterosexual couples.
The Real Crisis
To blame the number of children lingering in foster care on religious discrimination against same-sex couples is to completely sidestep the pressing, urgent crisis that exists in the foster care system. For starters, children are abandoned by a society that does not do enough to support families in crisis so that they do not fall into the foster care system in the first place, especially through circumstances of preventable neglect. Other children are ill-served by an overburdened system in which they are often not removed from irremediably broken and even dangerous families in a timely fashion.
Once in the system, many children languish there, moving from home to home while parents are given every chance to regain custody. Adoption, in a system that (rightly) prioritizes family reunification, is explicitly a last resort. But this means that children often are not made eligible for adoption by safe and stable families while they are still “adoptable.” Having experienced removal from their families under circumstances of trauma, abuse, or neglect followed by years in the foster care system, many children require a “forever family” with special resources who can meet the resulting needs, which are often profound. Many other children, regardless of the length of time in foster care, are hard to place because they have significant medical needs or are part of a sibling group. The reality is that many otherwise loving and qualified families, of whatever sexual orientation, are not well-equipped to parent these vulnerable children. Those who are willing to adopt children from foster care often do so without adequate resources or community support.
The ACLU lawsuit seeks to remedy none of these real ills, instead creating a false problem to further an ideological campaign. Meanwhile, children will suffer further while vast resources are deployed in a crusade to eliminate the very organizations that serve the most vulnerable among us. One has to wonder why MAP and its allies want to drive those organizations out of the public square instead of embracing them as effective partners in serving children and families. The existence of faith-based organizations does not unduly burden same-sex couples or reduce the availability of other foster care and adoption professionals who are willing to serve them. The presence of such organizations ensures a diverse group of providers to serve all families, including those of religious backgrounds.
Long before a young Galilean woman walked into the hill country to help her pregnant cousin in her hour of need, and long after, people of faith have served and will continue to serve the most vulnerable among us—the widow, the orphan, the abandoned, the expectant mother, the addict, the elderly. And, as they have done for millennia, they will do so with or without government assistance and approval.
Rather than filing lawsuits attacking one another, perhaps we could devote the considerable passion and resources of all providers—religious, humanitarian, and governmental—to tackling the pressing and real causes of the foster care crisis: poverty, unemployment, and the opioid epidemic, to name but a few. Driving out those child welfare providers that have been at the forefront of caring for children for centuries fails to respect the rich and diverse religious pluralism of our nation. Their absence will not benefit same-sex couples, but it will harm children.
Elizabeth Kirk is a lawyer, writer, and consultant who has a special interest in adoption law and policy.