America News Analysis

Could Catholic adoption agencies be declared illegal?

Yet another city’s Catholic adoption agencies were forced to shut down last week, this time in Pennsylvania, where a federal judge ruled that the City of Philadelphia can end its relationship with Catholic Social Services due to its refusal to place foster children with same-sex couples.

The Philadelphia ruling follows a settlement in Michigan last month in which the state’s attorney general, Dana Nessel (pictured), promised to enforce the non-discrimination provisions for adoption contractors even in the case of religious adoption agencies, up to and including terminating them in the event of noncompliance.

In effect, the Michigan attorney general has banned Catholic adoption in her state. Catholic charities in St Vincent and West Michigan have already sued the state over the change in policy, backed by the Becket Fund and the Alliance Defending Freedom (ADF).

The settlement itself involved one of the largest adoption agencies in the country, Bethany Christian Services, an Evangelical group with ties to the wealthy DeVos family. “We are disappointed with how this settlement agreement has been implemented by the state government,” the company said in a statement. “Nonetheless, Bethany will continue operations in Michigan, in compliance with our legal contract requirements.”

Nessel wrote on Twitter: “Having more adoption agencies which don’t discriminate = more children adopted into loving, nurturing ‘forever’ homes. Thank you to Bethany Christian Services!”

Responding to claims that her change in policy was anti-Catholic, Nessel also tweeted: “The Catholics in my family know what true anti-Catholic bigotry is. Standing up for LGBTQ rights does not make one anti-Catholic.”

Nessel is the first openly gay statewide official in Michigan and was elected in 2018 after a long record of legal advocacy for LGBT causes. In 2015, when the legislature tried to pass a law protecting religious adoption agencies, she was strongly against it. “These types of laws are a victory for the hate-mongers but … a disaster for the children and the state,” she said at the time.

The American Civil Liberties Union (ACLU) sued the City of Philadelphia in 2017 in a bid to get it to enforce these non-discrimination provisions against Catholic adoption agencies. Around the same time, the Southern Poverty Law Center branded ADF, which has fought back in the courts against these bans, an “anti-LGBT” hate group.

Jay Michaelson, the Daily Beast’s legal affairs columnist, wrote last month: “That’s right, in Donald Trump’s America, state and federally funded adoption agencies and other child welfare agencies can openly violate anti-discrimination laws and openly flout the ‘best interests of the child’ standard that governs American family law.”

In Philadelphia, the city terminated the contract of Catholic Social Services in March 2018. Catholic Social Services requested that the Supreme Court intervene to continue the contract while the litigation continued. The court denied an injunction over the objections of Justices Gorsuch, Thomas and Alito in August.

Now that a federal appeals court has ruled that the city was within its rights to terminate the contract, the case will be reviewed again in September and the Supreme Court will have another chance. With Justice Kavanaugh having been confirmed and the rest of the conservative bloc showing strong signs of interest in the case, the appeal from Catholic Social Services might be taken up.

Catholic Charities in Massachusetts pulled out of adoption services more than a decade ago, citing a new anti-discrimination law that could expose them to legal threats if they continued to decline adoptions to same-sex couples. In 2011, the Illinois Diocese of Springfield shut down its adoption services for the same reason. Last August, Catholic Charities in Buffalo ended its foster and adoption programmes, citing the same non-discrimination policies in New York state.

Some states have, however, sought to protect religious liberty by codifying the religious exemption for faith-based adoption providers in law. As of last year, there were 10, with Oklahoma and Kansas passing their bills in 2018. Several bills at the federal level have also been introduced to protect adoption providers, but most have made little progress. There has also been one federal bill that would take away religious exemptions, the Every Child Deserves a Family Act.

Lined up against religious liberty are well-funded progressive non-profit groups backed by the gay rights lobby, including the ACLU and the Center for American Progress (CAP), which put out a report in late 2018 pushing for harder enforcement of non-discrimination provisions for adoption providers. Ironically, although these non-discrimination provisions are putting adoption providers out of business, the CAP report says that a religious exemption for adoption providers “negatively affects the already strained child welfare system, ultimately harming the children in its care”.

With Republican-leaning states increasingly seeking to protect religious exemptions for adoption providers and Democratic officials increasingly shutting them down in their states, it may take the Supreme Court to bring a resolution to the question of whether Catholic adoption agencies should be allowed to exist in the United States at all.