Texas, Other States Move Toward Legal Protections for Faith-based Foster Care Providers

Texas faith-based child welfare providers say they are currently allowed to choose what children and families they will work with based on their religious beliefs. But they want legislative assurance that the current policy won’t change.

The Texas legislature is considering two bills – House Bill 3859 and Senate Bill 892 – that would allow faith-based providers of foster care and adoption services to refuse to provide certain services based on their “sincerely held religious beliefs,” like refusing to vaccinate or place children with same-sex couples.

Several faith-based providers have vowed that, without these laws, they will walk away from their contracts with the state’s Department of Family and Protective Services (DFPS).

Texas is the most recent in a slate of nine states where similar faith-based protection laws have been passed or are under consideration. In addition, legislation has been introduced in both chambers of Congress that would invoke federal funding penalties for states that prohibit faith-based providers from discriminating based on religion.

LGBT advocates have condemned the laws as permitting government funding to discriminatory actors.

“If you read [HB 3859] closely, it carves out and disallows discrimination against folks based on things like race and ethnicity,” said Ryan Valentine, deputy director of the Texas Freedom Network. “But it’s silent on the issue of orientation and gender identity. So even the bill itself acknowledges it’s creating space for contractors and representatives of the state of Texas to discriminate against LGBT families.”

The Alliance for Strong Families and Communities, a national membership group of child welfare providers whose ranks include faith-based providers, is also against such legislation.

“Our network does not support the application of religious tests for selecting clients,” said Alliance spokesman Tim Kobussen, in an email to The Chronicle of Social Change.

Texas Under Pressure

Texas’ foster care system is struggling to reform the system after a judge ruled it “broken” in 2015. Among other issues, foster children have been sleeping in Child Protective Services offices or hotels, due to a lack of families to take the children in.

Texas legislators are saying these bills are necessary to keep expanding the number of foster care homes available within the state. But child welfare advocates and other critics of the bills are worried that these bills will put the interests of the provider before the interests of the child.

Sen. Charles Perry (R-Lubbock), author of SB 829, said in a recent hearing of the bill that children and potential foster parents in the LGBT community would have a place to go, and the bills do not discriminate against them. The bills do require that every child welfare region in Texas have access to at least one non-religious provider.

Instead, he said, the intent of the bill is to protect faith-based groups that make up about 25 percent of the state’s child welfare providers.

“These providers are increasingly facing a decision between following their beliefs or risking consequences for declining to provide certain services,” Perry told the Senate Health and Human Services Committee. “Some organizations around the nation, as well as Texas, have already shut down services in the wake of lawsuits or the threat thereof. These groups are forced to stop or simply decide to no longer provide child welfare services.”

But the proposed law does not appear to halt any current practice at DFPS; it just precludes a change in policy down the road.

Lynn Harms, with the Children’s Home of Lubbock, said the agency does not currently train same-sex couples to be foster parents, nor do they intend to.

“We’re not experiencing any issues at this point,” he said, in an interview with The Chronicle of Social Change. “It’s more of an – I don’t want to say a preemptive strike – it’s more of a future protection to keep agencies at the table and keep them providing services.”

Some organizations, wary of lawsuits, have already closed down programs in Texas, rather than provide services that go against their religious beliefs.

Jennifer Allman, with the faith-based provider Texas Catholic Conference of Bishops and Catholic Charities, said her organization has had to also close services in other states because these religious protections weren’t offered. The organization has closed down programs in San Antonio, Austin, Houston and other cities.

In a hearing in late March on HB 3859, five faith-based providers, including Children’s Home of Lubbock, said that they would stop providing child welfare services if neither of the bills were to make it to the governor’s desk.

“If we’re forced to place in same-sex families, we will not continue placement,” Harms said. “As long as we can continue to place in families we feel confident in licensing, we will stay in the child placement field. But that’s why I think this bill’s important to agencies like ours – is if the day comes when that’s the only option for placing children, we’ll drop that contract with [the state].”

Policy Paradigm Shift

Texas is one of several states where legislators have moved to protect faith-based child welfare providers since the Supreme Court’s Obergefell v. Hodges decision in 2015, which rendered same-sex marriage the law of the land in the United States.

Before that decision, a slew of states had already passed their own laws on the matter. This increased the number of same-sex couples recognized by government, and therefore gave them equal footing to foster or adopt youth in the child welfare system.

In some states, this had little effect on the relationship between child welfare leaders and faith-based providers, which often make up a significant portion of the organizations that recruit, assess and assist foster and adoptive parents. The providers either did not object to the fact that they’d be asked to work with same-sex couples or, in some cases, already had been doing so.

Other states accommodated the philosophical gap between those providers and same-sex marriage. New Hampshire’s same-sex law allowed providers to decline to provide any service that would require it to acknowledge a form of marriage that conflicts with the provider’s religious philosophy.

In other states, the marriage laws spelled divorce for child welfare agencies and at least some faith-based providers. Catholic Charities ceased child welfare work in Massachusetts in 2006 after 20 years of contracting with the state.

In Illinois, where a civil union law took effect in 2011, made it clear that all contract providers would have to recognize any union the state did. Ultimately, the Department of Child and Families Services cancelled its contracts with five Catholic Charities affiliates and the Evangelical Child and Family Agency. Another faith-based provider, Lutheran Child & Family Services, accepted the change in state law, and remains a provider today.

There was also an attempt to pass federal law on the matter. The Every Child Deserves a Family Act, authored by former Rep. Pete Stark (D-Calif.), would strip federal funding from any agency that denied services based on sexual orientation.

In recent years, the paradigm has reversed. Same-sex couples once sought legislative relief in a nation that, as a matter of federal law, viewed marriage as an agreement between a man and a woman. Now, faith-based providers are seeking protection in a country that views marriage as between any two people.

Six state legislatures – North Dakota, South Dakota, Virginia, Mississippi and Michigan – have already passed laws that exempt faith-based providers from working with same-sex foster and adoptive parents.

Another three states ­– Texas, Oklahoma and Georgia – have pending legislation that would provide such protection.

And where Stark would have used the withholding of federal funds to punish discriminatory providers, Sen. Mike Enzi (R-Wyo.) and Rep. Mike Kelly (R-Penn.) have introduced bills that would restrict federal funds for states that did not permit faith-based providers to discriminate based on religious principles.

The Child Welfare Provider Inclusion Act of 2017 would empower the Department of Health and Human Services to dock 15 percent of either the Title IV-B or IV-E allocation of a state that takes “adverse action” against “a child welfare service provider on the basis that the provider has declined or will decline to provide, facilitate, or refer for a child welfare service that conflicts with, or under circumstances that conflict with, the provider’s sincerely held religious beliefs or moral convictions.”

The Heritage Foundation, a conservative think tank based in Washington, D.C., was an early proponent of federal protection for faith-based providers. At a policy roundtable with Senate staffers in 2014, Heritage fellow Sarah Torre made the case for the kinds of guarantees included in the Enzi/Kelly bills.

“We support protecting religious organizations to do what they want to do, which is to serve children,” said Melanie Israel, a research associate for Heritage’s DeVos Center for Religion & Civil Society. “They are not the only ones serving children. There’s room for everyone at the table, and ultimately, taking care of kids is what everyone is concerned about.”

The Child Welfare Provider Inclusion Act has been referred to a committee but has yet to be heard.

Texas HB 3859 has been passed on to the full House and SB 892 has been left pending in the Senate Health and Human Services Committee.

Beth Cortez-Neavel
is a freelance journalist and editor based in Austin, Texas. John Kelly also contributed to this story.

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