by Stanley Carlson-Thies

The bill addresses a serious problem: many foster kids and other children needing a new permanent home languish without one. But applying a nondiscrimination rule in a way that forces out of service faith-based agencies that specialize in placing children with married mother-father families is not the way to expand the number of foster and adoptive homes.

The bill is S. 1382 in the Senate, H.R. 2449 in the House. This is the fourth session of Congress where essentially the same bill has been introduced. The goal is simple: expand the number of homes that can adopt or become foster parents, and thus reduce the number of children who need a new home. The method: require any state or other “entity” that receives certain federal child welfare funds not to permit discrimination, in the recruitment of families or the placing children, on the bases of sexual orientation, gender identity, or marital status. Then every person and couple will be able to adopt or become a foster parent—no private agency will be able to turn anyone away. More families will accept children, fewer children will be waiting.

Or not. In fact, it is not so easy to convince people to become foster or adoptive parents—that’s why there are all those children waiting and waiting. It can take special outreach efforts, building trust between agencies and potential adoptive families, moral persuasion, a religious call. Public service announcements just aren’t that persuasive. The legal freedom to adopt or to become a foster parent, coupled with information about the number of kids needing a home, is not often sufficient.

That’s the lesson discovered by the State of Colorado. Here’s what a Denver Post story said:

“The number of Colorado children in foster care awaiting permanent adoption has been cut in half by a partnership between churches and government that places parentless kids in ‘forever homes.’

“When the Colorado Springs-based ministry Focus on the Family began spearheading the ‘Wait No More’ adoption initiative in November 2008, the state had 8,000 children in foster care. That number included almost 800 children who were eligible for adoption because their parents had lost parental rights after the state found serious and repetitive neglect and abuse in their families.

“In early 2010, only 365 children eligible for adoption remain in foster care, said Sharen Ford, manager of permanency services for the Colorado Department of Human Services.”

It is the lesson that the State of New Jersey discovered about twenty years ago when it had a “boarder baby” crisis—babies left behind in hospitals by mothers incapable of providing adequate care. The solution came when Pastor DeForest Buster Soaries of First Baptist Church of Lincoln Gardens (Somerset) set about recruiting foster parents from its own membership and then reached out to other churches to recruit and train additional foster parents. Harvest of Hope Family Services Network has been recognized by state and federal authorities for its successes in recruiting foster care families and in placing minority foster children into adoptive homes.

And it is the logic of the Human Rights Campaign’s All Children-All Families campaign which provides guidance and training for how state child welfare agencies and private adoption and foster care agencies can become “truly welcoming, affirming and supportive of LGBT families.”

In short, to expand the number of foster care and adoptive homes, governments should protect, not limit, diversity; they should preserve the freedom of private agencies to be distinctive, to maintain ties with particular moral and religious communities.

If the problem is that in some states LGBT people do not have the full right to adopt or foster that others have—this is a policy question all its own—then federal officials can work with states to persuade them to continue to modify their laws. But ensuring that everyone has the freedom to adopt or become a foster parent is a very different matter than requiring every private agency to act as if sexual orientation and marital status are not important matters in recruiting families and placing children. Many private agencies already disregard sexual orientation and marital status; allowing other agencies to maintain traditional moral values, to value religion, to insist on traditional marriages: this expands, rather than shrinks, the number of families willing and able to adopt or foster a child.

Senator Kirsten Gillibrand (D-NY), the chief Senate sponsor of the Every Child Deserves a Family Act, inadvertently demonstrated that the real problem is not that LGBT people are legally prevented from adopting or fostering children. The post on her website announcing her sponsorship of the bill features a lengthy table documenting by county how many New York kids are in foster care and how much it costs the state’s taxpayers to maintain them in that care. The Senator says that the state had over 22,000 kids in foster care in 2014 at a price of more than $400 million for services. But these sad numbers are not due to any legal impediment to LGBT fostering or adoption in the state and so would not be reduced by supposed remedy of the Every Child Deserves a Family Act. LGBT persons are free to adopt and to become foster parents in New York. More than that, the Administration for Children’s Services in New York City has a special focus on LGBT adoptions and foster care, including an LGBT Foster Care Project, that, among other things, specifically recruits LGBT foster parents.

A more promising bill than Gillibrand’s favored approach is the “Child Welfare Provider Inclusion Act of 2015” (S. 667, H.R. 1299). This bill would put a different “string” on federal child welfare funds: it requires states not to deny licensing, grants, or contracts to faith-based agencies because of their refusal to make decisions about which families to recruit and where to place children if such decisions would violate their sincere religious beliefs. The bill specifically names Massachusetts, California, Illinois, and the District of Columbia as jurisdictions where officials have refused to fund or license faith-based agencies because those agencies would not agree to ignore sexual orientation when making decisions. Passage of this alternative bill would expand diversity in those states and require other states to maintain their diverse networks of private agencies.

One other note. The Every Child Deserves a Family Act is obscurely worded, allowing commentators to claim that its nondiscrimination requirements would apply only to private agencies that receive federal funding—and thus faith-based agencies could avoid the restrictions by not taking federal dollars. So no religious freedom or other problem.

But should faith-based organizations have to avoid federal funding in order to retain their religious rights? Why?

And if that is what the bill intends, why does it state that its intent is, more broadly, “to prohibit discrimination in adoption or foster care placement”? Why does the bill offer technical assistance so that “entities covered by” the bill are helped to identify and change laws and regulations that violate the nondiscrimination requirements—of course, private agencies do not promulgate or change laws? Why does the bill promise that deadlines for making changes can be extended if a “State” (not private agency) can show it has to change a law in order to come into compliance? And why will the required GAO study after five years focus on whether “States” (not private agencies) have changed “policies, practices, or statutes” that are out of compliance?

It is state laws and regulations that are the focus of the bill—pressuring states to change their rules and licensing requirements so that private agencies, whether or not government-supported, are required to comply with the prohibitions on sexual-orientation, gender-identity, and marital-status discrimination, whatever their religious convictions might be. This bill would turn every state into a Massachusetts, California, Illinois, or District of Columbia. That’s the reverse of what federal law should do.