Rival bills in Congress would expand or gut provisions enacted in a handful of states that allow faith-based adoption and foster agencies to turn away applications from same-sex couples.
Though adoption by same-sex couples became legal nationwide in 2016, faith-based agencies have sought exemptions, saying that they don't want to be forced to violate their religious convictions about marriage and family. Same-sex couples say those actions amount to discrimination.
A bill supported by LGBTQ rights advocates, the Every Child Deserves a Family Act, would prohibit agencies that receive state funds from denying adoption or foster care to people based on their sexual orientation or gender identity. A more sweeping bill called the Equality Act, which covers other areas such as employment and housing, also would eclipse the exemption for adoption and foster agencies.
Conversely, the Child Welfare Provider and Inclusion Act would prohibit states from declining to partner with agencies because of their religious or moral beliefs.
While none of the bills appears to have a chance of advancing in a Congress where Republicans hold only a narrow majority in the Senate, battles are increasingly being waged at the state level, which could generate national attention or action. Questions over the future of the provisions linger as the Department of Health and Human Services recently marked November's National Adoption Month with an event at the agency's Washington headquarters.
Cathryn Oakley, state legislative director and senior counsel at the Human Rights Campaign, said she believes that challenges at the state level could climb all the way to the Supreme Court.
Alabama, South Dakota, and Texas this year created exemptions for adoption or foster agencies to deny applications from potential parents for religious reasons, such as if an applicant is gay. Other states, including Michigan, Mississippi, North Dakota, and Virginia, have similar exemptions. States generally outsource adoption services, whether physical custody or the handling of caseloads, to private agencies to help place children who are in the welfare system, and sometimes the agencies are faith-based.
Organizations such as Catholic Charities and Bethany Christian Services, which operate adoption and foster care centers nationwide, say they must abide by their religious convictions and that they refer to other agencies when they don't think they are the right match.
"Religious liberty is more than freedom of worship; it includes our ability to make our contribution to the common good of all Americans without having to compromise our faith," according to a website statement from Catholic Charities.
The Michigan exemption, signed into law in 2015 by Republican Gov. Rick Snyder, is being challenged in court. In September, the American Civil Liberties Union filed a lawsuit on behalf of two same-sex couples against Michigan's Department of Health and Human Services and the Children's Services Agency for faith-based agencies' refusal to accept applications from same-sex parents. According to the lawsuit, one representative told a lesbian couple that "same-sex couples aren't our area of expertise."
Rep. Mike Kelly, R-Pa., who introduced the House bill that would allow religious exemptions, said the lawsuit shows why his legislation must pass.
“Cases like these prove the need for solutions like the Inclusion Act," he said in an email. "It is not just based on fears of what could happen but a necessary response to things that are already happening. Religious liberty is under assault, and innocent children are in the crossfire. We can’t sit this fight out. Every single care provider that wants to help families deserves a seat at the table. Period.”
Such exemptions have been challenged before and resulted in shuttered services. Rather than allow adoption from same-sex couples, faith-based agencies have closed, including in the District of Columbia, Illinois, and Massachusetts. As a result, children were moved to other agencies.
Catholic Bishop Thomas Paprocki of the Diocese of Springfield, Ill., defended the case in his state.
"In the name of tolerance, we're not being tolerated," he said at the time.
Douglas Laycock, a law professor at the University of Virginia who specializes in religious liberty, said if multiple adoption agencies, meaning faith-based and secular, are available, then same-sex parents have access to adoption or foster care. Finding another agency isn't difficult, and faith-based agencies could make referrals when they have objections, he said.
"A diversity of agencies that meet different needs serve everybody," he said. "It's not about whether same-sex couples can adopt ... what's at issue is, can they force everyone else to adopt their view of the world or otherwise go out of business?"
If faith-based adoption agencies are shut down, he said, then children "have a lesser chance of being placed because there is one fewer agency in the state and the others can only handle so many kids." Catholic Charities, in particular, often cites its success at finding families for older children and those who are vulnerable, including children with disabilities or who have been abused.
Supporters of LGBTQ rights argue that faith-based agencies are using taxpayer dollars to discriminate against same-sex couples. In some states, they say, the law's language goes even further and could prohibit anyone who doesn't share specific religious criteria from applying.
"These are really sweeping and horrifying exemptions being built in," Oakley said. "It's really a license to discriminate."
In some states, the language is so broad that the agencies could turn away Muslims, an interfaith couple, or a single parent, she said. She notes that it is generally preferred to place children with relatives, and said she was concerned a child might not be placed, for instance, with an aunt who was a lesbian or a grandfather who was gay. She also worried about what would happen to children who are gay or transgender, such as whether a family who affirmed their identities would be denied adoption.
In states such as Texas, with a large area that can involve hours of travel, referral can be burdensome because of the lengthy adoption process that can involve multiple visits, Oakley added.
"There are real burdens that are put there," she said. "There's also a dignitary harm in saying, 'We don't serve people like you, but we know someone who doesn't have the same principles and are willing to serve people like you.'"
Allowing more people to adopt, advocates say, helps reduce the number of children who are waiting for families. Of the more than 428,000 children in foster care, 112,000 are eligible for adoption.
"Allowing agencies to turn away loving, qualified families based on religious criteria creates fewer families for children, reducing their chances of being placed in a suitable family, or any family at all,” Jay Kaplan, staff attorney at the ACLU of Michigan’s Nancy Katz and Margo Dichtemiller LGBT Project, said in a statement.
The big question, Laycock said, is whether states can protect the liberty of both sides.
"The answer is yes, we can protect the liberty of both sides, but neither side is interested," Laycock said. "Both sides want liberty for their base and not for the other side's base."