Adoption and the Anti‐​discrimination Wars

September/​October 2018 • Policy Report

America has had a relatively decentralized and pluralist approach to adoption, with a wide variety of both private and public actors helping to match children with families. But recently, controversies have arisen over what role, if any, is appropriate for religious and other agencies that decline to work with gay parents or that give preference to coreligionists. Is it possible to balance the rights of prospective parents, the belief systems of private agencies, and the urgent need for children to find homes? At a Cato conference, Stephanie Barclay of Brigham Young University, Sarah Warbelow of the Human Rights Campaign, Cato’s Walter Olson, and Robin Fretwell Wilson of the University of Illinois discussed this question.

STEPHANIE BARCLAY: I want to start with some first principles that I imagine many of us can agree with. Number one: gay couples can be fantastic parents and should not be banned from adopting or fostering children. Number two: there’s a shortage of foster and adoptive homes for foster children. And number three: our policy decisions should ultimately be aimed at what is best for these children, who have suffered so much.

There are 400,000 children right now in foster care nationally, and of those, 100,000 are just waiting to be adopted. Every year, about 20,000 foster children age out, which means that they leave foster care not having been able to find a permanent family. Studies show that these children, who are predominantly minority children, are more likely to end up in poverty.

I also want to clarify the difference between public and private adoption. With private adoption, the paradigmatic example is a teen mother giving up her child voluntarily. That’s very different from what we’re going to spend most of our time talking about, and that is public adoption, where children have been removed from their homes because they have suffered abuse and neglect, sometimes of unspeakable levels. These children, who need to be adopted, have been placed temporarily in foster homes as wards of the state. Agencies cannot help those children unless they have a contract with the government to do so.The government relies on private agencies because they can’t find enough homes on their own. They need all hands on deck.

If a prospective family contacts a private agency, there are a number of reasons why that agency might refer them elsewhere. There are foster agencies that focus exclusively on doing placements for Native American children with Native American families. There are agencies that exclusively find homes for LGBTQ children or that focus on particular medical or behavioral health issues. And so, if, for example, a couple approached an agency that specializes in placing Native American children with Native American families, and that couple didn’t have Native American heritage, that agency would say, “We’re happy to refer you elsewhere, but that’s not our mission.”

If a family proceeds with a particular agency, generally that agency will perform a home study, which involves an in‐​depth evaluation of the family and of any relationships of adults in that family. They will then provide a certification or endorsement of not just that family but those relationships.

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Stephanie Barclay and Sarah Warbelow

And that’s where the conflict arises for some faith‐​based agencies. A religious agency in Michigan, for example, said that they couldn’t give a written certification of an unmarried couple, or a same‐​sex couple. The agency said that same‐​sex couples could still adopt children in their care if they received that written endorsement through another agency — and, in fact, that has happened multiple times in the past. They just cannot provide that document contradicting their religious beliefs.

We are richer as a country when we have a plurality of voices — when we have faith‐​based and secular agencies serving a range of populations, all working together to bring in as many homes as possible for children who so desperately need them.

SARAH WARBELOW: There’s been a lot of attention on this as an LGBTQ issue. And certainly, same-sex–headed families are being excluded by these agencies, despite the fact that they are well qualified and willing to take children in. But these are not the only families that are being excluded. In South Carolina, a Christian adoption agency refused to place children in the care of a very experienced foster family who happened to be Jewish.

We are talking about an emergency in this country, where there are not enough families for children in need. It’s outrageous that we would allow agencies to turn away qualified families because they don’t fit a narrow model of what an ideal family should look like for that particular agency. We also know that children are not being placed with single parents despite the fact that single women are more willing to take in hard‐​to‐​place children — older children, children with disabilities. There are over 2 million LGBTQ people who are interested in adopting and being foster parents. These are also individuals who are willing to take in hard‐​to‐​place children.

Much of this debate got kicked off because the state of Virginia was contemplating adopting a regulation that prohibited foster agencies from discriminating against prospective families, including on the basis of sexual orientation and gender identity. The knee‐​jerk reaction of the legislature was to adopt a law that allowed these agencies to continue to accept taxpayer funding — including funding from people that they would not serve — in order to refuse to place children in loving families who are willing to accept them into their arms. That is a very serious problem.

Some of the proposals on the table would also allow child welfare agencies to refuse to place children with their biological families, if the agency deemed the person ineligible based on their sexual orientation or gender identity. Think about that — an agency saying, “We would rather place a child in congregate care or with a stranger than place them with a qualified aunt who happens to be lesbian.”

Some of these policies also permit discrimination against LGBTQ youth themselves. About 25 percent of youth in the foster care system are LGBTQ. LGBTQ youth are at high risk for rejection from their families and make up around 40 percent of runaway and homeless youth. But some of the proposals and laws that have passed, including in Texas, would allow agencies to place these children with families who are hostile to them, who will subject them to conversion therapy, or refuse to recognize that a transgender child is transgender.

At the federal level, you may have heard of the proposed Aderholt Amendment that was added to the HHS funding bill in the House. This bill would allow for all of those dangers; every single one of them. We need to make sure that all children have every opportunity to be adopted.

WALTER OLSON: Seven years ago, when I first wrote about this problem, I cited a cautionary example: the well‐​known litigation in Wilder v. Bernstein. This was a case in New York City, whose foster care system was run largely by institutions from major religious groups. The groups tended to provide foster placements for their communities; the Catholic agencies would make arrangements for Catholic kids, etc.

Then along came public interest lawyers arguing that this was unconstitutional, that this was religious discrimination, and in particular, that it perpetuated inequalities. The Catholic and Jewish agencies were known for doing an exceptionally good job, but this was not true for the Protestant agencies, which served a largely black population. And this inequality was unacceptable to the litigators. So, the city agreed to scrap the system and cut back drastically on religious matching. The agencies had to adopt something closer to a first-come–first-served method of assignment. They became more like interchangeable outposts in a single foster care system.

Outcomes were already pretty darn bad, and they became even worse as the high‐​performing religious agencies lost their oomph. Volunteers scattered, and the city’s foster care system lurched from crisis to crisis through 26 years of litigation. I hoped, seven years ago, that we would not repeat the same mistakes with adoption. But I fear that we may be doing that.

You don’t spend very long in the adoption world without noticing that two groups are tremendously overrepresented. The first is those of intense religious faith, who have a mission to help needy children. And the second group is gay people, who often cannot become parents directly.

And I’m not just talking about the easy cases: the teenage expectant mother who has 25 people who would love to adopt her baby. I’m talking about the hardest‐​to‐​place cases: the medically fragile cases, the older sibling groups, the behaviorally challenged kids. So often, it was either the highly religious people or the gay people who would step in for placements that no one else would make.

I think a lot of those cultural collisions, as it were, were beneficial on both sides because both sides had some suspicion to get over about whether the “other group” was really there for the right reasons. But you saw it in action. You saw how much they cared. It became hard to see them as an enemy; not after you saw what they were doing.

And then came the beginning of what may be 26 years of litigation against each other. I’ve been writing about litigation for more or less my whole adult life, and I know that if you want to go on liking and respecting people, you probably shouldn’t be in litigation with them.

I’m critical of some of the same things that Stephanie was critical of, like the idea that by taking one dollar of public money, you must convert to complete nondiscrimination, even if, as an agency, you stand ready to deal with parents who were brought in by other agencies of different religious views. I agree that when you press the logic that far, children will probably wait longer.

But unfortunately, as Sarah very rightly said, a lot of the remedies that we are now hearing often provide a sweeping and absolute right for religious agencies not to be discriminated against over any of their decisions; not just defunding but also adverse action.

Let’s apply this to a situation like that in the state of Kansas, which has exactly two agencies that the state contracts out with for its foster care system. At least one of them is likely to want one of these religious exemptions. But if that second agency pipes up with its own religious objections, what is the state of Kansas to do? Can it say, “We’d like at least one agency that we deal with to be open to everyone?” That would be adverse action, wouldn’t it?

We live with things like the GI Bill for education, in which you can take your GI voucher and go to a seminary if you want. Is there some way of voucherizing child services so that whoever makes the placement can get the subsidy, whether it is a secular or a religious group?

When I began reading about adoption, I realized for about the umpteenth time how glad I was to live in America. We do not have a single government agency that coordinates all adoption, as many European countries do. In America, we have had incredible pluralism, and through all of this, we got some of the highest and most successful adoption rates in the world because just like they used to say about the internet: if you’re blocked in one direction, you route around it. This is how so many gay people became parents; they routed around the obstacles in the system. Please don’t spoil pluralism. Please work with it.

ROBIN FRETWELL WILSON: Somehow, we have managed to mire children in a culture war. In 20 states, we now have laws where one side is winning, and the other side is losing, all the time. Thirteen states say that the state can’t discriminate against religious agencies, and they don’t give a tremendous amount of thought, as Walter said, to what that means for couples who want to adopt. Nine states say that agencies can’t discriminate against couples — without much thought for what that means for the religious agencies that are doing so much of this important work.

I’m an adopted child myself. My mom and dad literally changed the entire arc of my life. To borrow a phrase from Stephanie, we need all hands on deck. That means that anybody who can give these children a good family should be able to do so. Gay couples have been disproportionately stepping up to the plate to adopt and foster. In Oklahoma — which just passed a stand‐​alone, religious adoption agency protection — 24 percent of gay couples were raising adopted kids, compared to 4 percent of heterosexual couples.

But I think it also means that we have to keep every one of these agencies, including religious agencies, in the marketplace. Agencies that work in niche markets are successful because the people that they’re drawing forward to foster and adopt often share their values. And we should not be glib about that. We need agencies in every niche market, whether they’re faith communities, or Spanish‐​speaking communities, or African‐​American communities, or LGBT communities.

There’s a second point, though, that Sarah has addressed, which is that these are tax‐​funded agencies turning folks away. In Maryland, Catholic Charities received 70 percent of its funding from federal, state, and local dollars, meaning that a public‐​money‐​public‐​rules position taken in its same‐​sex marriage legislation would cause them to downsize 70 percent, or possibly close.

So, this brings me to the deep structural problem here: The state is picking winners and losers — the agencies that it allows to do this important work. But these agencies do not get paid until the child is placed. So that means that the agencies bear huge upfront costs to develop families who can foster or adopt. That back‐​ended payment structure rewards large agencies over small ones, and that yields a natural monopoly.

And there’s also a second choke point here that is harming children, and that is that gay couples can’t adopt or foster without certification. Now, as Stephanie said, for many religious agencies, their only concern is that they not be asked to pass judgment on a family by certifying the family.

What’s needed today is a fairer funding mechanism that pieces off the front‐​end cost and pays agencies directly. That would draw more agencies to the certification work and reduce the scarcity that leads to clashes. Instead of putting the support for that certification cost in the hands of state‐​picked agencies, we should put it directly in the hands of the families that are making these commitments to children. In other words, we should empower the prospective foster and adoptive family to hire the agency that best meets their needs.

We have a model for this already. We do this with early childhood development for poorer families, where we give families a certificate and let them choose where to spend it: with grandma, with a Montessori school, or with a Lutheran day school. And that structure has assured us a diversity of providers and given families choice. It has worked across five presidential administrations, from Bush I to Obama and now Trump.

And notice what happens here: Suddenly, we don’t have tax‐​funded agencies deciding to assist or not assist a family with public money. We have families deciding where to spend those dollars; families that know best who will make them more comfortable and successful in fostering and adopting children. Common sense and experience show that we, in fact, can take children out of the culture war, where they do not belong.