It’s been three years since the Supreme Court first recognized marriage equality in Obergefell v. Hodges, striking as unconstitutional state-level bans on same-sex marriage. And in that time, religious conservatives have zeroed in on the familial rights of LGBTQ people in their efforts to roll back the civil rights gains promised by the Obergefell decision. Their most recent efforts are gaining ground.
First, there are the legislative attacks. This year, lawmakers in both Kansas and Oklahoma passed measures allowing child-placement agencies to refuse to serve certain families, including LGBTQ families, based on the agencies’ religious or moral beliefs. At least seven other states have similar laws or policies on the books already. Then, there are the attacks coming from the Trump administration, which has repeatedly sided with religious conservatives objecting to complying with civil rights laws that prohibit same-sex discrimination. Both lines of attack have spawned federal litigation that’s pending across the country, which has set up religious efforts to deny LGBTQ families the opportunity to foster or adopt children as the next test of the strength and reach of Obergefell.
In February 2017, Fatma Marouf and Bryn Esplin started discussing becoming parents. The two women had married in 2015 and shortly thereafter moved to Texas, where they both work as professors at Texas A&M University. When fertility treatments proved unsuccessful, the couple began to consider foster parenting and adoption. Catholic Charities of Fort Worth (CCFW), a child-placement agency affiliated with the United States Conference of Catholic Bishops (USCCB), reached out to Marouf and the immigration law clinic she directs at Texas A&M about the affiliate’s work with unaccompanied refugee children. The timing seemed fortuitous: Marouf and Esplin began the licensing process to become foster parents for a refugee child.
They never got the chance: CCFW rejected them immediately as foster parents. During their first interview with placement staff, CCFW’s board executive committee chair informed the couple not to submit an application because their family structure did not “mirror the Holy Family,” according to court documents. Shocked and distraught, the couple made a complaint to the Office of Refugee Resettlement (ORR), the branch of the Department of Health and Human Services (HHS) that oversees international placements like the couple had hoped for here. HHS funds the program the couple was turned away from. Marouf and Esplin allege in court filings that the agency has been mostly unresponsive to the complaints, which has allowed the discrimination to continue. Marouf and Esplin eventually sued the Trump administration and the USCCB, alleging they had been discriminated against because they are a same-sex couple. Their case is pending in federal court in Washington, D.C., where both the Trump administration and the bishops have asked the court to dismiss the lawsuit.
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Marouf and Esplin’s situation is, unfortunately, not unique. The City of Philadelphia is in a fight with Catholic Social Services over the latter’s practice of refusing to place children with LGBTQ couples and also, allegedly, requiring potential families provide a “pastoral reference” before they can be considered for placement. This requirement would also remove many non-religious households from consideration, or create a system that preferences Christian households over other faiths. Meanwhile, as Sarah Posner reported for the Nation, long-time Trump ally and South Carolina Gov. Henry McMaster (R) personally intervened with HHS to try and secure a religious exemption from federal nondiscrimination laws for a Christian child-placement agency in that state. In March, McMaster also issued an executive order allowing the state’s adoption agencies to discriminate based on religious beliefs.
All this means that religious conservatives may have found a successful avenue to challenge the reach of the Obergefell decision.
“In the context of the child welfare measures I think it is very hard for the public to understand the significance [of these turn-away laws] because I think … many people, perhaps most people, really have no involvement with the public child welfare system,” said Leslie Cooper, deputy director of the American Civil Liberties Union (ACLU) LGBT & HIV Project in an interview with Rewire. News. “So I think there’s this misunderstanding: Even when I talk to people who are generally supportive of nondiscrimination rules, when we talk about what’s going on with these kinds of laws, one reaction I often hear is well why can’t the family just go somewhere else to another agency,” Cooper said.
“There are two really big problems with that,” Cooper continued. “One is, that doesn’t help the children who are losing out on good families because some families were just turned away. That is a very direct harm to the children.”
“But then when looking at the same-sex couples, it doesn’t take into account the reality of the child welfare system,” Cooper explained.
Not all child-placement agencies are alike, Cooper explained. Some may specialize in medically sensitive children or children with significant behavioral issues, for example. “So families that say, ‘Hey, look we’re doctors or nurses and we’d like to care for a medically needy child’ and that agency doesn’t accept” the kind of family they are, “you can’t just go to another agency,” Cooper said.
“The bigger picture is the stigma and the harm of being turned away for who you are,” Cooper concluded.
That stigma—the harm of being turned away for who you are—is precisely what Justice Anthony Kennedy focused on in his majority opinion in Obergefell. It’s the second sentence of his opinion. “The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life,” Kennedy wrote. Same-sex couples are entitled to the same dignity as couples of the opposite sex, and when they are singled out for disfavor, he said, that dignity is harmed. That’s the fundamental nugget of Obergefell.
But while historic in its recognition of marriage equality, the Obergefell decision is also at its heart a conservative one. The dignity of same-sex couples is only recognized in relation to the dignity of traditional marriage, which is perhaps the most conservative social institution we have.
Kennedy wrote, “Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other,” wrote Kennedy, who also called marriage “a keystone of the Nation’s social order,”
Kennedy also portrayed marriage as the traditional precursor to parenting, expressing his concern that the children of people not legally allowed to marry will “suffer the stigma of knowing their families are somehow lesser.”
At the same time, however, Kennedy’s opinion in Obergefell didn’t only recognize the rights of same-sex couples to marry. It also recognized the “right” of religious conservatives to claim a religious objection to marriage equality.
“Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” Kennedy wrote. “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.”
Kennedy didn’t just recognize a religious objection to marriage equality. His opinion appears to endorse some legal validity of moral objection as well: “The same is true of those who oppose same-sex marriage for other reasons.”
And with that nod to religious opposition to marriage, Kennedy created an opening for conservatives’ right to “advocate” against it individually. In turn, conservatives have taken that opening and run with it, framing their anti-LGBTQ advocacy efforts not as a religious objection to being gay per se, but to their religious objection to marriage equality—and to the practices marriage often encompasses, like adoption.
The Supreme Court had one opportunity to push back directly against these efforts in January, but it declined. Mississippi’s Republican-dominated legislature passed HB 1523 in April 2016 in response to Obergefell. The law prevents the state from taking legal action against someone who refuses to serve LGBTQ people on the basis of that person’s religious beliefs or moral convictions opposing same-sex marriage, the existence of transgender people, or any sex outside of a “traditional” male-female marriage. Advocates sued to block the law, arguing the measure was unconstitutional. In June 2016, a federal district court temporarily blocked the law from taking effect, but in June 2017, the Fifth Circuit reversed the lower court’s temporary injunction, claiming the plaintiffs lacked standing to challenge the law. Attorneys on behalf of the challengers urged the Supreme Court to reverse the Fifth Circuit and let the legal challenge to Mississippi’s law proceed.
The Roberts Court declined to do so, letting the Mississippi law take effect.
The Court’s decision not to intervene in the Mississippi litigation isn’t necessarily an endorsement of the state’s law. The case had been dismissed on procedural grounds. But it isn’t a rebuke either. And with each opportunity the Court misses to state once and for all that religion cannot be invoked to evade anti-LGBTQ discrimination laws, the justices are tacitly endorsing religious conservatives’ claims that their discriminatory actions are somehow constitutionally protected First Amendment activity.
It could be at least a year or more before the federal courts definitively decide whether the dignity of LBGTQ people or the religious objections of evangelicals will win out in these cases. And although the Kansas and Oklahoma laws are set to take effect July 1 and November 1, respectively, there’s no guarantee that will happen.
“It is possible that there will be more litigation in some of these states,” Cooper told Rewire.News.
But in the meantime, a simple truth remains: Children who could be placed with a family are not.
“It’s a dual harm,” said Cooper. “It subjects families to the humiliation and harm of discrimination and fewer options to be able to care for children who need them and it means children lose out on countless families who could care for them.”
And it is a “dual harm” that may be of Justice Kennedy’s own creation.