“Fostering kids is not an easy thing to do,” Christi Dreier of Round Rock, Texas, recently told the Wall Street Journal. Dreier and her partner have fostered several children and adopted three of them. Complaining about a bill that recently passed the Texas house of representatives, she explained, “You treat them like your own, and you have the risk of losing them. Now on top of that, you’re going to tell me I can’t do it because I’m in a same-sex relationship? That doesn’t make sense.”
Dreier is right. That doesn’t make sense. But Texas lawmakers who want to allow adoption agencies that receive state money to turn down prospective parents based on religious beliefs are not trying to prevent Dreier and her partner from adopting. They are trying to keep stable and perhaps increase the number of organizations that can help Texans adopt.
Gay adoption is legal in all 50 states, and thanks to the proliferation of gay couples fostering children, thousands of children who might not otherwise have loving homes have found them. Unfortunately, the nationwide legalization of gay marriage combined with nondiscrimination statutes in state law is driving some adoption agencies out of business.
Many will remember that more than 10 years ago, after Massachusetts legalized gay marriage, Catholic Charities was forced to end its adoption services in the state because it would not place children with gay couples. In recent years, California, Illinois, and the District of Columbia have also lost religiously affiliated adoption agencies as a result of similar rules.
Some states have started to push back. In March South Dakota passed a law that would exempt religious organizations from these nondiscrimination statutes. Five other states allow agencies to keep faith-based restrictions on adoptions in place, but not if they receive public dollars.
There are currently about 400,000 children in the foster care system in the United States. About a quarter of those children are eligible for adoption—that is, they have had their parental rights severed. As a result in part of the opioid crisis, the number of children in foster care has been on the rise, and systems in states like Ohio and California have been overwhelmed. In West Virginia, the number of children in foster care went up 24 percent between 2012 and 2016.
For years, proponents of gay marriage argued that even if you didn’t really approve of same-sex partnerships, in the realm of adoption, pragmatic concerns should take precedence over moral qualms. In other words, children would be better off with a gay couple than languishing in foster homes. And they were right. The statistics for children who age out of the foster care system and reach adulthood without being adopted are particularly grim. According to the research organization Child Trends, “38 percent had emotional problems, 50 percent had used illegal drugs, and 25 percent were involved with the legal system. . . . Only 48 percent of foster youth who had ‘aged out’ of the system had graduated from high school at the time of discharge.” They were also more likely to be homeless, incarcerated, unemployed, and to have experienced an early pregnancy.
But knowing how important it is for these children to find permanent homes, one might think proponents of gay adoption would be willing on the same pragmatic grounds to allow religious agencies to continue to work to place children, even if they don’t subscribe to the same beliefs.
Robin Fretwell Wilson, director of the program in family law and policy at the University of Illinois College of Law, has been advising various states on how to handle this issue. She says that religious providers of adoption service typically make up a fraction of the total number of providers but it’s not an insignificant one and, she argues, they shouldn’t have to shut down. In Texas, about a quarter of the providers have a religious affiliation. In Georgia, they make up about 10 percent.
While some have suggested that secular providers will fill the gap, that has not happened. Catholic Charities in Massachusetts, says Wilson, was among the most adept at finding permanent homes for children with special needs. “You can’t just develop that skill set overnight,” says Wilson. Moreover, in some states religiously affiliated adoption agencies are concentrated in particular regions, and if they shut down there may be large areas without any agencies to serve the people there. This would mean that fewer at-risk children would be able to find permanent homes.
Wilson warns that legislators shouldn’t go out of their way to pick fights with adoption agencies over their religious convictions. Not every state is threatening these agencies, but when municipalities or state bureauc-racies put rules into effect that restrict the agencies’ ability to function, they may not really have the interests of the foster population in mind.
The Department of Children and Family Services in Illinois, for instance, just issued new departmental procedures whereby if children or adolescents “explore/express a sexual orientation other than heterosexual and/or a gender identity that is different from the child/youth’s sex assigned at birth,” DCFS “staff, providers, and foster parents” must “support” and “respect” the child’s exploration “without any effort to direct or guide them to any specific outcome for their exploration.”
There are plenty of foster parents and foster-adoption agencies that would find such rules misguided or immoral. Surely we can find room for loving parents who don’t believe that gender is a social construct. The goal, after all, is finding stable homes, not hiring faculty for a sociology department.
There are certainly possible compromises: Religious adoption agencies could be required to refer people to other organizations if they won’t serve them. Wilson suggests that states could try to ensure that there is an agency that will serve gay couples within a reasonable driving distance.
But ultimately there is something more important at stake. Says Wilson, “The only relevant question is how do you get every kid into a family.”
Naomi Schaefer Riley, a senior fellow at the Independent Women’s Forum, is the author of The New Trail of Tears: How Washington Is Destroying American Indians.
