A Malheur County woman who was denied the chance to become a state foster parent because she couldn’t follow a rule requiring her to “respect, accept and support” the sexual orientation, gender identity or gender expression of a potential LGBTQ+ child, alleges the regulation violates her free speech and religious freedom.
Lawyers for Jessica Bates urged a federal judge Wednesday to block the state from enforcing the regulation, saying it conflicts with Bates’ Christian beliefs that a person should identify and live “consistent with” their biological sex.
Bates, 41, of Vale has said she won’t use a child’s preferred pronouns or take a child to receive hormone shots, her lawyer told the court.
Attorney Johannes Widmalm-Delphonse of the Virginia-based Alliance Defending Freedom argued that the state’s regulation sidelines “every person of faith” by excluding “applicants with views about sexual ethics and the human body that the state does not like.’’
U.S. District Judge Adrienne Nelson immediately interjected: “Whose rights take priority?”
Nelson went on to ask: Should it be the rights of a prospective foster or adoptive parent or those of a child who has experienced instability in a home and needs placement by the state?
Widmalm-Delphonse responded: “We would submit that there is no conflict, but certainly we don’t deny that the state has every prerogative to pursue the best interests of the child. That’s not the question.”
Nelson cut in, “It is to me. I want to know what is in the best interest of the child.”
It’s the latest case to pit religious freedom rights against a public agency’s anti-discrimination policies. Two recent rulings before the U.S. Supreme Court and one in Washington state have sided with people or organizations that raised objections to exclusions imposed by a policy or rule.
Attorney Thomas H. Castelli, representing the Oregon Department of Human Services, said the state puts paramount importance on the health, well-being and interests of the children in state custody.
The state has adopted a variety of rules to protect children, including that future foster or adoptive parents must agree not to expose a child to certain people with criminal backgrounds or remove a child from Oregon.
Castelli argued that the LGBTQ+ respect rule doesn’t infringe on free speech rights.
The state isn’t asking parents to “affirm or advocate” for a child who identifies as LGBTQ+ but to “accept, respect and support” the child’s preferences and identification, he said.
“It doesn’t mean a parent has to take the children’s beliefs and make them their own,” Castelli said.
Children in the state’s child welfare system already have experienced significant disruptions to their lives and LGBTQ+ children experience trauma at a significantly higher rate than straight cisgender children, according to the state’s filings.
‘No Problem Loving Them’
Bates is a widowed mother of five children, ages 10 to 17, who describes herself as a Christian whose faith permeates her life. She works part-time as an ultrasound technician and volunteers twice a month performing ultrasounds for expectant mothers at the Hope Pregnancy Center in Ontario.
“I want to share my religious beliefs, including my beliefs about biblical marriage and our human identity, with my children, whether biological or adopted,” Bates wrote in a sworn declaration filed in court.
In the spring of 2022, she applied to the Department of Human Services to adopt a sibling pair younger than 10.
After completing the state’s “Resource and Adoptive Family Training Course,” she sent an email to a coordinator on Aug. 9, 2022, sharing her personal conflict with the training on supporting children’s sexual orientation/ gender identity, known shorthand as “SOGI.”
“I don’t know how many children there are out there under the age of 9 who fall into this category (and to me it’s kind of crazy that society is wanting to get kids thinking about this stuff at such young ages; I think we should let them keep their innocence), so this may not even be an issue, but I need to let you know I cannot support this behavior in a child,” she wrote.
“I have no problem loving them and accepting them as they are, but I would not encourage them in this behavior.’’
More than a month later, Bates was told she was ineligible to adopt because of her position.
She said she wants her biological children to live with and bond with the children she hoped to foster and eventually adopt.
Castelli, the lawyer for the state, argued that the judge should reject Bates’ request for a preliminary injunction, which would require the state to set aside its rule and allow her application to go through while her suit proceeds. Instead, Castelli urged the judge to allow the rule to remain in effect, essentially leave the status quo in place as the suit moves forward.
Bates hasn’t suffered irreparable harm, he said. Foster parents don’t have the same rights as biological parents and the child’s safety and support are of top significance to the state, he said.
“The state has to be able to tell parents how to raise children,” Castelli said. “That’s always going to implicate speech.”
Widmalm-Delphonse argued that Bates already has been harmed because her application was rejected without the state even considering if she could foster a non-LGBTQ+ child.
Bates simply wants to “get in the door to be considered for children in the system. And so we would submit that for the vast majority of children, that presents no conflict, and that is why we believe that the state can still pursue its interests,” Widmalm-Delphonse said.
Bates, he said, “will not renounce her religious beliefs by word or deed as a condition to serving children in need. Nor should she have to.”
The judge began the hearing asking each side to consider how U.S. Supreme Court rulings on two other religious freedom cases affect this one.
In its 2021 decision in Fulton v. Philadelphia, the U.S. Supreme Court found Philadelphia cannot refuse to work with a faith-based agency, Catholic Social Services, because it won’t certify same-sex couples as foster parents, providing a win for religious freedom advocates.
In a 6-3 ruling in June, the nation’s high court ruled that a web designer in Colorado had a First Amendment right to refuse to design wedding websites for same-sex couples despite a state law that forbids discrimination against gay people.
Justice Neil M. Gorsuch, who wrote the majority opinion, said that the First Amendment protected the designer from being compelled to express views she opposed.
In another recent case in federal court in Washington state, a judge ruled in 2020 that the Washington State Department of Child, Youth and Families couldn’t bar the great-grandparents of a child who was removed from her parents in Idaho from caring for the girl.
The agency had found the great-grandparents, who were devout Seventh-Day Adventists, were in conflict with the agency’s policy to support LGBTQ+ children if the child were to develop or identify as LGBTQ+.
U.S. District Judge Salvador Mendoza Jr. wrote: “If the only factor weighing against an otherwise qualified applicant has to do with their sincerely held religious beliefs, the Department must not discriminate against a foster care applicant based on their creed.”
In the Portland case, Nelson said she’d take the arguments under advisement and issue a written ruling.
— Maxine Bernstein
Email [email protected]; 503-221-8212
Follow on Twitter @maxoregonian
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