When the Supreme Court’s 2015 Obergefell v. Hodges decision affirmed Americans’ constitutional right to same-sex marriage, Justice Anthony Kennedy assured the country that the religious freedom safeguards enshrined in the First Amendment would protect those who continue to oppose those marriages. In his dissenting opinion, Justice Samuel Alito was not so sanguine, warning, “I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers and schools.”
Not quite three years later, Alito’s concerns have already come to pass.
In a Star guest commentary earlier this month, Lori Ross, CEO of FosterAdopt Connect, claimed that a bill currently proposed in Kansas would enshrine “taxpayer-funded discrimination,” calling it “negligent” and “harmful.” By referencing the truly tragic story of a young boy’s suicide, she implied that the bill could lead to the deaths of children in the state foster care system. Or take Republican state Sen. Barbara Bollier’s statement on the Senate floor during a debate on the bill, where she called Catholic teachings on marriage “sick discrimination.” What sort of legislation would draw such vehement denunciation?
The proposed legislation is the Adoption Protection Act. All it does is ensure that faith-based adoption providers will be allowed to continue to operate in accordance with their sincerely held religious beliefs. In other words, the proposed legislation merely preserves the status quo and makes it clear that faith-based providers will not be penalized for serving in accordance with their beliefs.
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In places such as Massachusetts, Illinois and California, faith-based organizations have been forced to close their child welfare services. Philadelphia has ceased foster placements through Catholic Social Services and Bethany Christian Services. Virginia and Michigan are among other states that have passed laws similar to the Adoption Protection Act in order to protect faith-based organizations.
Faith-based organizations have served vulnerable children in Kansas since the mid-19th century. They do not have any new agenda. They do not seek special treatment. They do not impose their beliefs or practices on anyone. They simply seek to serve. This act allows them to continue.
In an interview this week with The Star, Ross admitted that there is no problem with the status quo. In fact, she criticized the Adoption Protection Act as unnecessary, stating, “They’re solving a problem that doesn’t exist.” If there is no problem, then why would it lead to dire consequences, as she implied in her guest commentary? If the act were passed tomorrow, faith-based adoption providers would function exactly as they do today, and as they have since they began to serve.
To allow faith-based organizations to continue to operate does not constitute taxpayer-funded discrimination. The Supreme Court has made clear, most recently in the case of Trinity Lutheran Church in Columbia, Mo., that the state may not discriminate against faith-based organizations — even in receiving financial benefits from the state — simply on the basis of their religious beliefs.
In Obergefell, Kennedy acknowledged that our country remained deeply divided over same-sex marriage and expressed hope that each side would “engage those who disagree with their view in an open and searching debate.” In a divided society, statutes such as the Adoption Protection Act enable those with diverse viewpoints to work together by acknowledging our rights, but also recognizing the enormous value of contributions from faith-based organizations to the common good.
It remains to be seen whether Kansans can decide to work together for the benefit of vulnerable children, living up to the goodwill Kennedy believed was possible, or whether — as Alito feared — people of faith will be banished from the child welfare system, reduced to whispers in the recesses of their homes.
Elizabeth Kirk is a lawyer, writer and consultant who has a special interest in adoption law and policy.