A new HHS plan to rescind LGBT bias rules would back the feds away from one of the most hotly contested frontiers of the culture wars, the role of religious agencies in foster care and adoption. I explain in a new Cato post.
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. 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)
Three pending federal bills “call for increasing CPS [Child Protective Services] investigations of minor marks on children… The proposed bills should raise special concerns for families of children with rare medical conditions and disabilities” [Diane Redleaf] Argument: negotiations for kinship care in the shadow of threatened CPS proceedings amount to a parallel, hidden foster care system [Josh Gupta-Kagan, Stanford Law Review via Diane Redleaf] “Why Jailing Parents Who Can’t Pay Child Support Is Questionable Public Policy” [Hans Bader, FEE]
Naomi Schaefer Riley explains at AEI.
- Local crackdowns on home-sharing can do a lot of harm [Christina Sandefur, Federalist Society teleforum] Sandefur on laws banning working from home [Regulation mag, Cato Daily Podcast]
- “Apparently the ad [about a 9-year-old daughter willing to do household chores for neighbors] generated multiple phone calls from paranoid neighbors thinking I was using my child as a slave,” and next thing the sheriff called [Lenore Skenazy; Woodinville, Wash.]
- Seventh Circuit rules against “disparate impact” age discrimination claims for job applicants, and a Forbes columnist writes as if it had decided to abolish disparate treatment claims for them as well [my Twitter thread on botched coverage of Kleber v. CareFusion Corp.]
- “The Law Merchant and Private Justice. A Conversation with Professor Barry Weingast” [Kleros]
- “Disabilities Rights Group Files Lawsuit Against San Diego, Scooter Companies” [Rachel Kaufman, Next City]
- Ideology vs. kid placements: “Some 440,000 kids are in foster care in the U.S.; if we shut down [theologically conservative] faith-based foster agencies, those children will have a much harder time finding homes.” [Naomi Schaefer Riley, City Journal, earlier here, here, etc.]
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.
Details and registration here:
Panelists include Walter Olson, Senior Fellow, Cato Institute, Robert A. Levy Center for Constitutional Studies; Stephanie Barclay, Assistant Professor, J. Reuben Clarke School of Law, Brigham Young University; formerly Legal Counsel, Becket Fund for Religious Liberty; Sarah Warbelow, Legal Director, Human Rights Campaign; Robin Fretwell Wilson, Roger and Stephany Joslin Professor of Law, University of Illinois College of Law; Elizabeth Bartholet, Morris Wasserstein Public Interest Professor of Law, Harvard Law School; Faculty Director, Child Advocacy Program; Margaret Brinig, Fritz Duda Family Chair in Law, Notre Dame School of Law; Mark Montgomery, Professor of Enterprise and Leadership, Grinnell College; coauthor, Saving International Adoption: An Argument from Economics and Personal Experience; Irene Powell, Professor of Economics, Grinnell College; coauthor, Saving International Adoption: An Argument from Economics and Personal Experience; and Ryan Hanlon, Vice President of Education, Research, and Constituent Services, National Council for Adoption.
America has developed its own decentralized and pluralist approach to adoption, with a wide variety of both private and public actors helping match children with the families they need along several paths: adoption of older children in public care, including the foster-to-adopt path; adoption of newborns; and international adoption. But services for children in public care have been swept up in controversy over what if any role is appropriate for religious and other agencies that decline to work with gay parents or that give preference to cobelievers. The rate of international adoption, once hailed as a success, has plunged in recent years. Meanwhile, the domestic foster care system has long been beset by policy challenges.
How can government policy best avoid placing obstacles in the way of finding permanent homes for children? Are there ways to respond to legitimate concerns about international adoption, such as official corruption, that do not simply close down that process? What is the role of pluralism, and can groups with differing objectives and fundamental premises work side by side?
Cato’s half-day conference, featuring keynote speaker Elizabeth Bartholet, a Harvard law professor and noted adoption expert, will air a variety of informed views. Topics will include the conflict between LGBT advocates and some conservative religious agencies over the latter’s participation in state child placement systems; sources and possible solutions of the crisis in international adoption; and the proper role and practical effect of birth mother choice.
Do teenagers have a constitutional right to drivers’ education as a part of substantive due process? That’s one question raised by a hard-fought battle over federal judge Janis Jack’s virtual takeover of the Texas foster care system. The state has strongly pressed its defense, and the Fifth Circuit has stayed Jack’s injunction. As with earlier ventures into institutional reform litigation in such fields as school finance and busing, special education, and prison reform, the case raises separation of powers issues by transferring the power of the purse into judicial hands and delegating essentially legislative powers to special masters and, implicitly, to private advocacy lawyers who drive the process. [Mark Pulliam/Law and Liberty, first and second parts; Robert T. Garrett, Dallas News; more on foster care, institutional reform litigation and its frequent result, consent decrees]
This November, voters in California, Arizona and Florida will decide on proposals to amend their state constitutions to include permanent bans on same-sex marriage. A new Field poll indicates that California voters are leaning heavily against that state’s Proposition 8 by a 38 to 55 percent margin, almost double the margin by which the measure was failing in July, despite an intensive “pro” campaign by conservative religious forces. A recent Quinnipiac poll in Florida shows the amendment there still in the lead, but not by the 60 percent majority needed to pass a constitutional change under that state’s law. Arizona voters rejected a ballot measure of this sort two years ago, and opponents have high hopes of defeating it again.