Ducey has final say on legislation to protect religious adoption, foster agencies from discrimination claims
Foster kids in Arizona overwhelmingly outnumber licensed foster families, and a bill on Gov. Doug Ducey’s desk could shrink their options even further by allowing agencies to deny applicants based on religious beliefs.
The bill would shield foster and adoption providers from discrimination on the basis of religion, though it’s not clear what problem the bill hopes to solve. Even its Republican sponsor says there haven’t been any known foster or adoption providers in Arizona who have faced fines or other repercussions for operating in ways consistent with their religious beliefs, including decisions to deny services.
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But Sen. Sine Kerr, R-Liberty, said her Senate Bill 1399 aims to preempt discriminatory action that might happen in the future, particularly as civil rights protections are codified for LGBTQ people. She cited Illinois, California, Massachusetts and Washington D.C. as examples of places where religious based agencies had their rights violated. All four prohibit sexual orientation or gender identity discrimination in fostercare or adoption to some degree. Catholic Charities hasn’t operated in Illinois since 2011, when the state refused to renew a contract because the agency only placed children in the homes of married or single foster parents, and referred couples in civil unions to other agencies.
The Center for Arizona Policy, a conservative Christian lobbying group known for pushing anti-LGBTQ legislation, supports the measure. A statement on its website defines the bill as a protection for organizations with religious objections to current attitudes around sexuality.
“States have given in to pressure to exclude individuals, companies, and organizations that hold a historical or religious view of human sexuality. This unconstitutional mandate forces religious organizations to either violate their religious convictions or stop providing adoption and foster care services, which they have done for decades,” reads a fact-sheet about the bill on their website.
Child advocacy groups Children’s Action Alliance and Coconino Coalition for Children and Youth joined 15 other organizations in signing a letter to the House of Representatives opposing the bill. The letter notes that similar legislation in other states resulted in agencies turning away potential parents, which won’t solve the current strain on the foster care system in Arizona.
“In states like Tennessee and South Carolina that have, through laws or executive orders like SB1399, permitted agencies to use religious criteria, Jewish, Catholic, Unitarian, and same-sex married couples have been turned away because they don’t meet a particular agency’s religious litmus test,” the letter states.
Both of those states are dealing with lawsuits that allege adoption and foster agencies — which contract with the state — discriminated against a Jewish couple in Tennessee and a Catholic mother in South Carolina seeking to become foster parents.
You might as well attach an appropriation to it, because we’re gonna get sued in a big way. And it’s gonna cost money, lots of money to defend it.
– Rep. Domingo Degrazia, D-Tucson
Critics of the bill say Arizona has a good track record of contracting with faith-based agencies, and enshrining non-discrimination law in their favor would only open the door to LGBTQ discrimination. Currently, the Department of Child Safety has policies in place that prohibit religious discrimination, and the agency contracts with 30 foster care licensing agencies across the state who recruit and authorize potential foster families. At least six of them are faith-based.
“We need to stop limiting families and the homes we can make for LGBTQ youth…and open our arms to LGBTQ foster families,” said Rep. Mitzi Epstein, D-Tempe, during a House debate of the bill on March 30.
SB1399 allows agencies to deny services and be protected from lawsuits, provided the denial is in line with the company’s religious beliefs. Critics worry this will have a chilling effect on potential applicants to foster parenting — a resource that’s sorely needed when there are, on average, four foster kids in the system for every licensed family.
Proponents of the measure argue it won’t bar anyone from being foster parents, but will instead increase options for foster kids by attracting families and new agencies that previously worried about protecting their religious beliefs. But a report from the liberal think tank Center for American Progress refutes that, saying that codifying religious exemptions ultimately creates barriers for prospective LGBTQ parents, contributing to strained adoption and foster care systems and costing taxpayers in the long run.
The bill works to protect the rights of foster parents as much as of agencies, even though their rights are already a part of state law. Current law prohibits foster parents from being discriminated against because of their religion, and SB1399 adds to this guarantee in ways that could introduce contradictions with other statutes.
A provision in the bill absolves foster parents from retaliation when they use their own religious beliefs to raise children. This doesn’t take into account the temporary nature of foster care, opponents say, and leaves the state with no recourse to address conflicting beliefs.
“If a foster family were to enforce their own religion on the foster child, there’s nobody to backup the child now,” Epstein said, during a House vote on March 31.
Sen. Marcelino Quiñonez, D-Phoenix, said that provision would be in conflict with current religious protections. State law protects a foster child’s ability to attend the religious services of their choice, and because reunification is the goal of Arizona’s foster system, the beliefs of the legal or biological parents should not be usurped, he said.
“While a child is in foster care, the biological parents’ and child’s religious beliefs must be respected…When a child is in foster care, their parents retain their constitutional right to direct the education and religious upbringing of their child,” Quiñonez said, on Wednesday.
In 2019, nearly half of all foster kids in Arizona were reunified with their parents or primary caregivers, and 66% of those that were spent less than 12 months in the system.
This legislation allows child welfare agencies to deny reunification services to a parent who does not go to church or who is recently divorced, for example.
– Marilyn Rodriguez, ACLU of Arizona
The bill not only allows foster parents more say in what religion children are exposed to, but also gives agencies greater power in approving reunification efforts with biological families. Included in the long list of services for which agencies cannot be discriminated against are family preservation services and temporary reunification services, which allow children to stay or return to their families while services focus on improving their home life and safety.
ACLU Arizona lobbyist Marilyn Rodriguez sounded the alarm over this provision during a House Judiciary hearing on March 16, saying it could pave the way for agencies to reject reunification if the biological parents lead lives that faith-based agencies disapprove of.
“This legislation allows child welfare agencies to deny reunification services to a parent who does not go to church or who is recently divorced, for example,” she said.
Ultimately, the broad language and scope of the bill is likely to lead to costly litigation, critics warn. Lawsuits can be brought against the state for actual as well as threatened violations.
“You might as well attach an appropriation to it, because we’re gonna get sued in a big way. And it’s gonna cost money, lots of money to defend it,” said Rep. Domingo Degrazia, D-Tucson.
SB1399 cleared its final hurdle in the House on a 31-26 vote, with only Republicans supporting it. Ducey has until April 9 to sign the bill into law or veto it.