A federal judge in Michigan has ruled for a Catholic foster-care program, but religious objectors may find it a victory built on sand. I’m in the online Wall Street Journal today with an opinion piece explaining why (paywalled for many readers). Related on Judge Robert Jonker’s opinion in Buck v. Gordon, in which he rebuked Michigan Attorney General Dana Nessel [Sue Ellen Browder, National Catholic Register] and on Fulton v. Philadelphia [Mark Rienzi](and mentions: New York Post, Kathryn Lopez/National Review)
Thank you to Naomi Riley for including me in her WSJ piece Thursday on a truly bad New York scheme to empower birthparents whose parental rights have been terminated to petition nonetheless for court-ordered visitation. The quotes from me:
In many cases adoptive parents do arrange with birthparents for some kind of contact after an adoption is completed. “Some adoptive parents are glad to agree to those conditions, and that’s fine for them. Where they have not, it is a very bad idea to adopt a presumption of enforcing such a long-term obligation on unwilling adopters,” notes Walter Olson, an adoptive parent and a senior fellow at the Cato Institute.
The legislation presents serious logistical concerns as well. What if an adoptive family wants to move across the country? Would the courts be able to prevent them? “Adoptive families are real families and deserve the full rights of other such families unless they have agreed to some other arrangement,” says Mr. Olson.
In a letter to Gov. Cuomo opposing the bill, the group New York Attorneys for Adoption and Family Formation explained that the law may also violate the due-process rights of adoptive parents. In 2000, they point out, the U.S. Supreme Court struck down a similar Washington state law.
Both houses of the New York legislature have now passed the bill, which is supported by legal services groups like the Legal Aid Society of New York City but opposed by the Adoptive and Foster Family Coalition of New York (AFFCNY), the Council of Family and Child Caring Agencies (COFCCA), “which represents nonprofit foster care agencies statewide, and the New York Public Welfare Association (NYPWA), which represents county government child welfare directors.” [Michael Fitzgerald, Chronicle of Social Change] AFFCNY has more on its opposition here, and notes: “Adoptive families would have no choice but to hire and pay for legal representation for themselves.”
“For Congress to impose a racialized and non-neutral regime on parents and children is not only unwise and unfair, but unconstitutional.” The Cato Institute has joined an amicus brief challenging the Indian Child Welfare Act (ICWA) in the Fifth Circuit case of Brackeen v. Bernhard. I’ve got more details in a new post at Cato at Liberty. Earlier on ICWA here.
I’ve posted before about our July Cato conference on adoption, pluralism, and children’s interests. Now Cato’s bimonthly Policy Report has published highlights of the panel on anti-discrimination law and religious agencies, with speakers including Stephanie Barclay of BYU, Sarah Warbelow of the Human Rights Campaign, Robin Fretwell Wilson of the University of Illinois, and me.
One of my comments about pluralism and freedom in the system: “When I began reading about adoption, I realized for about the umpteenth time how glad I was to live in America.” Not that the system isn’t full of problems: on the grueling 26-year litigation in the New York City foster care case, Wilder v. Bernstein, see this 2011 piece of mine.
Our September 20 Cato legal panel on the Indian Child Welfare Act (more) was more timely than I could have imagined. In the federal case of Brackeen v. Zinke, discussed on the panel, Judge Ryan O’Connor of the Northern District of Texas on October 4 declared major provisions of ICWA unconstitutional on multiple grounds including equal protection and anti-commandeering doctrine. More: Timothy Sandefur; Matthew Fletcher, TurtleTalk; Emma Platoff, Texas Tribune; John Kelly, Chronicle of Social Change.
Appeal is likely. Just before the decision, the public-radio-associated program Native America Calling had a program showcasing tribal advocates’ views. I’ve written about the Act, including its constitutional and moral infirmities, here and, as part of a Cato Unbound symposium, here.
“Passed in 1978, the Indian Child Welfare Act (ICWA) was intended to stop abusive practices by state and federal officials, who often removed Native American children from their families without sufficient justification. But today, ICWA is the subject of litigation in federal and state courts by challengers who argue that it imposes race-based restrictions on adoption and makes it harder for state officials to protect Native American children against abuse and neglect.”
On September 20 I moderated a Cato discussion of recent developments and upcoming challenges to ICWA, presented by Timothy Sandefur, Vice President for Litigation at the Goldwater Institute and author of Escaping the ICWA Penalty Box; Matthew McGill, attorney for plaintiffs in Brackeen v. Zinke, a major ICWA lawsuit under way in Texas; and Charles Rothfeld, who represented the birth father in the important ICWA case Adoptive Couple v. Baby Girl. Earlier on ICWA here.
- Peer-to-peer car sharing platforms could reduce the costs of car usage, unless elements of rental car industry manage to strangle it through regulation [Jonathan M. Gitlin, ArsTechnica on Illinois Gov. Rauner’s veto of a bill to cripple startups] Are we headed toward a legal requirement that cars be designed to sense that a driver has high blood alcohol and not function then? Does it matter whether the car is self-driving? [Nicole Gelinas]
- “11th Circuit rages against ‘incomprehensible’ shotgun complaint, concludes lawyer’s intent was delay” [ABA Journal]
- Quackery and bluster define the lawsuit filed by NY, MD, NJ, and CT attorneys general against Congress’s curtailment of state and local tax (SALT) deduction [Reilly Stephens; more, Howard Gleckman, Tax Policy Center]
- “Conservative/Libertarian Faculty Candidates Are Hired By Law Schools Ranked 12-13 Spots Lower Than Equally-Credentialed Liberal Applicants” [James Cleith Phillips via Paul Caron/TaxProf]
- Coming next week: I’m set to host and moderate a Sept. 20 forum at Cato in D.C. on the Indian Child Welfare Act. Featured are three lawyers who have been involved in high-profile ICWA litigation, Timothy Sandefur of the Goldwater Institute, Matthew McGill of Gibson Dunn, and Charles Rothfeld of Mayer Brown and Yale Law School [details and registration; event not livestreamed, but video to be posted later]
- And now for something completely different: “Charles Evans Hughes and Chevron Deference” [Gerard Magliocca]
Reporter Gillian Friedman at Deseret News covered our July conference on adoption [earlier here, with videos and podcasts, and more on topic] Brian K. Miller of the Center for Individual Rights has more on the proposal by panelist Robin Fretwell Wilson on voucherizing home studies (“How Vouchers can End the Culture War Over Adoption”), as does Wilson’s home institution, the University of Illinois College of Law.
The steep decline in international adoption, one theme of the conference, has been explored in places like Priceonomics. Keynote speaker Elizabeth Bartholet’s many books include Nobody’s Children, and you can find the Harvard Law Child Advocacy Program, which she directs, here; also check out this 2014 New York Times contribution. And panelist Mark Montgomery and Irene Powell’s book Saving International Adoption has been featured in outlets like The Conversation, The Academic Minute and NPR Morning Edition
More kids find homes when government doesn’t stand in the way: videos are now online from Thursday’s successful Cato adoption conference. They include a first panel on discrimination law and religious agencies:
A keynote address on international adoption by Harvard law Prof. Elizabeth Bartholet:
And a final panel on policy obstacles to adoption.
I figure in all three sessions, in the first as introducer/panelist and in the other two as moderator.
Three years ago I took a critical view of the trend in many states and cities toward excluding from publicly funded adoptive placement of kids in public care relatively conservative religious agencies that decline to handle placements to families outside their belief group, to non-traditional families such as same-sex couples and single parents, or both. In recent years the ACLU and like-minded groups have stepped up the pressure with lawsuits in states like Michigan aimed at excluding these groups from access to public money unless they take all kinds of families.
Now a bill called the Child Welfare Provider Inclusion Act (H.R. 1881/S.B. 811), passed by the House of Representatives as a rider on the pending Labor/HHS appropriations bill, would prohibit states from taking adverse action against foster care and adoption agencies on the grounds that they refuse to engage in referrals, placements or other services that conflict with their religious or moral convictions. States found to have violated the rule would be subject to loss of 15 percent of their federal child welfare funding. The rule broadly prohibits “discriminating or taking an adverse action against” agencies and would give agencies broad legal remedies including attorneys’ fees.
I haven’t had a chance yet to review all the details of the bill, which in any case would need approval of the Senate and President before becoming law. The Ethics and Religious Liberty Commission of the Southern Baptist Convention (ERLC) and U.S. Conference of Catholic Bishops have papers in favor of the measure and Human Rights Campaign against.
In the mean time a well reported, balanced piece by Gillian Friedman on the controversy mentions tomorrow’s (Thursday’s) Cato conference in D.C. on adoption policy [Deseret News; more/related, Bobby Ross, Jr., Religion News Service in March] The panel on this subject leads off the conference, and includes Assistant Professor Stephanie Barclay of the J. Reuben Clarke School of Law at Brigham Young University; Sarah Warbelow, Legal Director at the Human Rights Campaign; Prof. Robin Fretwell Wilson of the University of Illinois College of Law; and me.