2022 State Legislative Sessions: An Overview on Child Welfare Provider Inclusion Acts

2022 State Legislative Sessions: An Overview on Child Welfare Provider Inclusion Acts

As LGBT ideology continues to pervade our culture, pressure to embrace its tenets and abandon contrary religious or moral convictions regarding sexuality and marriage has become more acute. This pressure has been used, in particular, to force faith-based adoption and foster care agencies to choose between remaining true to their sincerely held religious beliefs, scaling back their operations, or closing their doors.

Even before the U.S. Supreme Court legalized same-sex marriage in Obergefell v. Hodges in 2015, some faith-based adoption and foster care agencies had already begun to feel pressure from local governments to place children in homes with same-sex couples—a move that would go against these agencies’ sincerely held belief that children should only be placed in homes with a married mother and father.

Some state legislators have responded to this problem by introducing Child Welfare Provider Inclusion Acts (CWPIAs), or Inclusion Acts, which protect faith-based agencies from government discrimination against certain protected beliefs.

This is a much-needed effort, especially as legal attacks against faith-based agencies have increased. Local and state discrimination against faith-based providers dates back over a decade, but one of the most recent court cases, Fulton v. City of Philadelphia, made it to the U.S. Supreme Court in 2021. This case came about because the City of Philadelphia stopped referring children to Catholic Social Services (CSS) and refused to renew its contract because of CSS’ sincerely held religious beliefs about marriage. No one had ever been turned away by CSS, and CSS noted that, had they been approached by a same-sex couple, they would have provided a referral to another agency. Ultimately, the case resulted in a narrow victory for Catholic Social Services and religious freedom. The Court ruled that Philadelphia had violated the First Amendment by allowing secular but not religious exceptions to their fostering contracts. This ruling allows CSS to continue operating in accordance with its beliefs for now. But many observers have noted that the Philadelphia could easily tweak its requirements to preclude faith-based objections to single-parent homes and same-sex marriages. In fact, many other jurisdictions already have.

Fulton influenced a similar case in a lower court in Michigan that favored the agency. It also caused state officials in Kentucky to reconsider refusing to renew a contract for Sunrise Children’s Services due to the agency’s policy of only placing children with a married mother and father. Fortunately, the faith-based agencies in these states have been allowed to continue operating, at least for the time being. But broader protections for faith-based adoption and foster care providers are urgently needed.

CWPIAs do not stop or otherwise hinder same-sex couples from becoming adoptive or foster parents or limit the pool of potential foster and adoptive parents. Every state has child welfare agencies that are willing to place children with same-sex couples. CWPIAs do not impact the operations of these agencies; they merely protect faith-based providers so they can continue offering their important services, which in some states make up either a majority of annual placements or a substantial plurality. Furthermore, most faith-based agencies will help same-sex couples find other agencies willing to assist them. Yet even these referrals won’t satisfy activists bent on targeting faith-based agencies to change their beliefs about marriage and sexuality.

Since Obergefell in 2015, an average of two states have introduced CWPIAs each year. A total of 11 states currently have CWPIAs in place. Our culture’s increasing hostility to religion and the ever-present need for foster and adoptive parents make this type of legislation sorely needed in the remaining 40 states that have not yet enacted a CWPIA.

Fortunately, state legislators have continued to respond to this need, and this year, CWPIAs were introduced in three states (excluding carryover)—Arizona, Indiana, and Kentucky.

  • Kentucky HB 495 was the strongest bill introduced this year because it defined discriminatory actions and protected beliefs—namely the beliefs that marriage consists of one man and one woman and that the terms “man” and “woman” refer to one’s biological sex. This bill also avoided a common pitfall in CWPIAs by not limiting its protections to an agency’s written beliefs. Additionally, it included religious freedom protections for individuals and organizations providing certain services, such as photographers and florists, to ensure that they would not be forced to violate their sincerely held beliefs about the nature of marriage. Lastly, it provided a cause of action for a person injured or adversely affected by a violation.
  • Indiana HB 1338 contained the core provision of protecting faith-based adoption and foster care agencies from government discrimination and also provided clear descriptions of what would constitute discrimination in these circumstances. Additionally, it did not limit these protections to an agency’s written beliefs. However, it failed to define which beliefs were protected under the law.
  • Arizona SB 1399 is the only CWPIA enacted this year. Signed into law by Gov. Doug Ducey in April 2022, this bill had provisions similar to Indiana’s bill, providing protections for faith-based adoption and foster care agencies and defining what constitutes “discrimination,” but failing to define the specific beliefs protected under the law. Nevertheless, it did create a cause of action for individuals whose religious freedom rights have been violated by the government and provide faith-based agencies in Arizona with much-needed protections.

These efforts must continue. Children and families are best served when faith-based adoption and foster care agencies are allowed to remain open and operate according to their sincerely held religious beliefs. As our society grows more hostile to religion, state efforts such as these will be even more important to guard against government discrimination. CWPIAs are needed to help ensure a free marketplace of providers who are ready and able to help as many children in need as possible.