William Kenzo Nakamura U.S. Courthouse, in Seattle, Wash. (General Services Administration).
A federal appellate court has rejected an administrative rule in Oregon which bars individuals from serving as adoptive foster parents unless they commit to respecting a child”s sexual orientation, gender identity, and gender expression.
In a 58-page opinion issued Thursday, the U.S. Court of Appeals for the 9th Circuit reversed a lower court ruling against Jessica Bates, a widowed, single mother of five, whose adoption application was denied due to her disagreement with the policy.
Oregon officials enforced the policy after Bates “objected to using adopted children’s preferred pronouns or taking them to medical appointments for gender transitions,” the appeals court explained.
Bates sued and lost at the district court level – being denied injunctive relief by U.S. District Judge Adrienne Nelson, a Joe Biden appointee.
Now, in a 2-1 ruling on First Amendment grounds, the panel directed the district court to issue a preliminary injunction barring the Beaver State’s Department of Human Services from using the rule in any determination of Bates’ eligibility as an adoptive foster parent.
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The majority opinion, penned by Circuit Judge Daniel A. Bress, appointed by President Donald Trump during his first term, and joined by Circuit Judge Michael Daly Hawkins, a Bill Clinton appointee, says the rule compels speech and burdens the free exercise of religion.
The rule in question requires applicants to:
Respect, accept and support the race, ethnicity, cultural identities, national origin, immigration status, sexual orientation, gender identity, gender expression, disabilities, spiritual beliefs, and socioeconomic status, of a child or young adult in the care or custody of the Department, and provide opportunities to enhance the positive self-concept and understanding of the child or young adult’s heritage[.]
While communicating with officials during the adoption process, Bates was asked if she could abide by the rule. Bates said she “cannot support this behavior in a child,” and “would not encourage them in this behavior.” Then, she added: “I believe God gives us our gender/sex and it’s not something we get to choose.” When asked a follow-up question about taking a hypothetical child to receive gender-affirming care, she replied it “would be considered child abuse.”
The state, for its part, argued Bates’ rejection was based on her refusal to facilitate “the provision of childcare to a child” and said the rule has the “goal of ensuring the health and well-being of children.” In other words, Oregon largely couched its defense of the rule on Bates denying gender-affirming treatment out of hand.
Ultimately, the majority determined this argument was a red herring – instead launching into a broader discussion about Oregon’s use of Resource and Adoptive Families Training (RAFT) materials. In those materials, which are provided to all potential adoptive parents, there are a number of pro-LGBTQ statements.
The majority shares the following excerpt:
[U]nder the heading “Tips for Supporting Children and Youth”: “Display and share symbols, images, and resources that accept and affirm the identity of young people who are LGBTQI2-S,” citing, among other things, “rainbow flags,” and “pictures and posters of diverse people who are known to be LGBTQI2-S.” As an “Easy Do,” parents are encouraged to “[s]hare stories and role models,” such as “queer music icons; transgender women in history; Black gay men who made a difference; [and] famous lesbians, LGBTQ Asian and Pacific Islanders.”
To hear the majority tell it, these materials evidence a focus on parental speech – above all else – when it comes to adoption. And the majority finds such speech to be mandatory.
From the opinion, at length:
Oregon’s rule, as reflected in the RAFT materials, quite clearly restricts and compels speech based on both content and viewpoint. It restricts certain speech by adoptive parents on the topic of sexual orientation and gender identity, while requiring speech that aligns with the state’s perspective on these intensely debated issues in our society. Applicants who wish to adopt children through the foster care system must reinforce the state’s perspective of sexuality and gender identity as evolving concepts, while withholding contrary views that are less embracing of same-sex relationships and a conception of gender identity that does not align with biological sex.
Ultimately, the majority found the rule far too broad and speculative to sustain a strict scrutiny analysis under the First Amendment.
Under long-standing ideas of constitutional analysis, the way a court approaches a question is often determinative, if not dispositive. Typically, this is understood in terms of how harshly any given court will scrutinize the government’s behavior. In the parlance of the U.S. Supreme Court, there are three major frameworks: rational basis review, intermediate scrutiny, and strict scrutiny.
In general terms, rational basis review often yields a win for the government; strict scrutiny often yields a loss for the government; while intermediate scrutiny is anyone’s guess.
Here, in line with the general rule, strict scrutiny results in a loss for the state regulation at issue.
“Oregon is disallowing Bates from adopting any foster care child based on the possibility that the child may eventually identify as LGBTQ and encounter a lack of support in Bates’s home,” the majority writes. “It is not narrowly tailored to impose on Bates an extreme and blanket rule that she may adopt no child at all based on her religious faith, for fear of hypothetical harms to a hypothetical child.”
In a strongly worded 40-page dissent, U.S. Circuit Judge Richard R. Clifton, a George W. Bush appointee, jabs the majority for its “caricature” of the rule “as the state’s bully pulpit for propagating its normative views on gender identity.”
Rather, the dissent says, accepting the state’s argument as valid, the rule is mainly about child care and can be likened to a rule about compulsory vaccinations.
“Bates’s refusal to take a child to certain medical appointments, does not implicate speech,” the dissent argues. “Such conduct is more akin to a parent’s refusal to vaccinate a child, which, as Bates acknowledged during oral argument, ‘doesn’t bring up speech issues.’ A panel of judges should not interfere with the implementation of a state-enacted rule that denied a prospective parent’s foster care application based on her unwillingness to meet a child’s medical needs.”
Clifton goes on to say the rule only incidentally affects speech and religious practice – and harshly disputes the notion that the RAFT materials are anything other than “advisory.”
“If Bates insists on raising adopted children without ever having to take them to medical appointments directed by the state, she can seek adoption through private agencies, which she says she has not done because they are more expensive and farther away,” the dissent goes on. “Instead, Bates seeks to require Oregon to turn its wards over to her, even though she told the state that she would place her personal views about children’s health above Oregon’s judgment and responsibility, on account of financial and geographic convenience to her.”
