Change the World

Religious Freedom Laws: How Gay Dads Bear the Brunt of the “Freedom” to Discriminate

We welcome Brian Esser to the Gays With Kids team. Brian Esser, Esq. is a lawyer whose practice focuses on building families through adoption, surrogacy, and assisted reproductive technology.  He and his husband Kevin live in Park Slope, Brooklyn and have two sons through open adoption.  You can find him on the web at www.esserlawoffice.com.


I was in my office this past June when the Supreme Court (finally) held that the right to marry extends to same-sex couples with the Obergefell decision. I went on a Twitter spree, favoriting and retweeting so many photos of families rushing to courthouses. The little kids, who reminded me of my two sons, beamed as their moms and dads were finally married. There was just one problem: Obergefell did not explicitly address adoption and parentage rights. Those kids standing with their parents — and our own children with us, their gay dads — still face discrimination. Already, 21 states in all have enacted religious freedom laws. These laws give agencies, businesses and people the right to refuse service to a family if providing that service is against their religious beliefs. Yes, your conservative aunt on Facebook thinks this is about florists and bakers — even pizza places! — who don’t want to work on gay weddings. But gay dads planning to build their families through adoption or foster care now face an increasing number of states that permit discrimination.

The states that have enacted religious freedom laws are most common in the South and Midwest, but can be found in all regions. Seemingly LGBT-friendly states such as Illinois, Pennsylvania and Connecticut have passed them, in addition to less friendly states like Mississippi and Alabama.

Religious Exemption Laws (Source: Movement Advancement Project)

While these religious freedom laws do not explicitly reference same-sex couples or LGBT people, the purpose of these laws is clear. Even Justice Alito in his Obergefell dissent talked about how same-sex marriage could negatively affect “religious liberty.” Enter Kim Davis, the Kentucky clerk who refuses to issue marriage licenses to same-sex couples. She made herself the poster child of this movement.

Foster and Adoption Laws: Foster Care (Source: Movement Advancement Project)

And she is joined by those looking to stop gay men and women from creating families. Laws in Virginia, North Dakota and Michigan either allow child welfare agencies and individual service providers in those states to refuse to work with prospective parents if doing so would violate the agencies’ or service providers’ “sincerely held religious beliefs,” or prohibit “adverse action,” such as stripping funding, by the state against child welfare agencies and individual service providers that refuse to provide services for religious reasons.

Foster and Adoption Laws: Joint Adoption (Source: Movement Advancement Project)

Religious freedom laws affect both private and public agencies. LGBT couples and individuals pursuing private adoption can usually find a welcoming agency to work with. The Human Rights Campaign has also developed a set of benchmarks for culture competence and publishes a list of the agencies that have achieved them. I recommend that families who want to pursue an agency adoption start with this list when researching who they want to work with. Just because a private agency is located in a state that would allow it to engage in discrimination does not mean that it will. And agencies located in states ban discrimination on the basis of sexual orientation may not be welcoming to all families. Consider the agency you choose on a case-by-case basis.

An area of even greater concern is how gay-dads-to-be get treated by our nation’s foster care agencies. Since Obergefell married same-sex couples can now adopt jointly in all states (for unmarried couples, it is still a state-by-state issue), which should mean that LGBT couples should have equal access to family building through foster care. Many states and counties have outsourced much of the recruiting, screening, training, placing of children, and monitoring children and families. Whether the entity is overtly religiously affiliated or not, there is the possibility that an agency, or even an individual social worker or administrator, may deny services entirely to gay dads, refuse to place children with foster families headed by same-sex couples, or decline to allow same-sex couples to adopt children who are thriving in their homes. If the family lives in an area where the local agency refuses to work with them, they may effectively be denied the opportunity to become parents entirely.

LGBT families who are fostering or fostering-to-adopt can face overt and covert discrimination. Sometimes their inquiries about a specific child available for fostering or adoption may not be responded to. Sometimes a child will be moved to another foster home for flimsy reasons. Sometimes an agency may suggest a different service provider would be a better fit. And sometimes the LGBT family may be told directly that the agency refuses to work with them.

What can be done? First, we need to stop the spread of these so-called religious freedom laws – particularly the brand that allows agencies to make decisions based on their own prejudices, not the best interests of children. Second, we need to continue educating adoption service providers, whether they work for public or private agencies, that LGBT couples and individuals can and do provide stable and loving families for children.

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