Tennessee Governor Signs Controversial Adoption Bill

Republican Tennessee Governor candidate Bill Lee celebrates with supporters at his primary election night party at the Factory in Franklin, Tenn. (Shelley Mays/The Tennessean via AP)

(CN) – On Friday, Tennessee Governor Bill Lee quietly signed a bill allowing faith-based adoption agencies to decline placing children in homes based on the organizations’ religious convictions, legislation that had drawn criticism from groups advocating for LGBT civil rights.

In creating the law, Tennessee joined eight states with similar legislation on their books and further highlighted the tension between faith-based organizations and advocates for LGBT rights, surrounding adoption and foster care.

“The governor believes that protection of rights is important, especially religious liberty. This bill is centered around protecting the religious liberty of Tennesseans and that’s why he signed it,” said the governor’s spokesman Gillum Ferguson in a statement.

After the Tennessee Senate passed the legislation Jan. 14 on a 20-6 vote, the American Civil Liberties Union said on Twitter it was the first anti-LGBT bill a legislature passed in the new year.

The two-page legislation, which went into effect the moment it was signed, prohibits the Tennessee Department of Children’s Services from revoking the licenses of or deny funding to private child-placing agencies in the state if the “placement would violate the agency’s written religious or moral convictions or policies.”

It also prevents couples and individuals who were denied by a faith-based agency from suing in civil court.

Chris Sanders, executive director of the Tennessee Equality Project, said the LGBTQ advocacy called on Lee to veto the bill until he put pen to paper. With the law enacted, he expects a legal organization might challenge the law in court at some point.

“If public money is involved, then everybody ought to be able to be served,” Sanders said. “I mean, why should I subsidize my own discrimination?”

The passage of the legislation makes Sanders believe 2020 will be a “rough session” for LGBT rights in the General Assembly.

For instance, it is expecting a bill to be introduced that proposes ending marriage licensure in Tennessee, which is designed as a response to the Supreme Court’s decision legalizing same-sex marriage.

There are 30 licensed private agencies that help Tennessee Department of Children Services provide out-of-home care in the state, according to the department’s June 2017 to July 2018 annual report, the most recent report available online.

Typically, about 80% of the adoptions in the state – and DCF finalized 1,272 in that timeframe – occur when foster caretakers make their foster care permanent.

Licensed private agencies facilitated 750 domestic adoptions and 135 through international adoptions.

DCS reported in a November press release 350 children are waiting to be adopted in the state – most of them teenagers in foster care.

Currey Cook, director of Lambda Legal’s Youth in Out-of-Home Care Project, said Tennessee’s timing of the law is troubling, given the opioid epidemic has left more children in state care and, thanks to a new federal law, the federal government is directing states to place more children with families rather than group homes.

In some states, faith-based organizations get large contracts to assist the state in adoption and foster care services, Cook said.

“We have government providers who are basically saying ‘we’re deciding that you person or you couple are not suitable parents and we’ve decided that’s because of your religion or your identity.’ And those are not actually criteria related to your ability to parent,” Cook said.

Cook said a time when individuals in the LGBT community were barred from adopting was not that long ago. Florida overturned its ban on adoptions to gay couples in 2010, he said.

Cook said Lambda Legal would look at the possibility of litigation to challenge Tennessee’s law. It is involved in two other court cases challenging adoption and foster care policies already, one in Texas and the other in South Carolina.

Meanwhile, a bill introduced in the Virginia Legislature would repeal that state’s law and prohibit child-placing agencies from discrimination based on gender identity, sexual orientation and religion, for instance.

Meanwhile, President of Tennessee Baptist Children’s Homes Greg McCoy said enactment of the law means business as usual at the organization that recruits foster homes in Baptist churches across the state. Currently, foster homes recruited by TBCH care for fewer than 90 children from Memphis to East Knoxville.

“We’re a small potato in this bunch,” McCoy said.

It has operated for about six years, ever since Jim Henry, then commissioner of DCS, began enlisting the help of faith-based organizations because the department was under investigation for losing children and others had died in its care, McCoy said.

Recruiting only families that share its beliefs, Tennessee Baptist Children’s Homes operates on private donations, although its foster families receive stipends, in order to avoid some of the strings that come with government funding, McCoy said.

Currently, DCS places children with foster care families by deciding with the placing agency and the fostering home whether or not that particular location is best for the child, according to McCoy.

And in the world of Southern Baptist churches were McCoy works, he’s seen an increase in the number of church-goers involved with foster care over the years.

“I think we’re seeing a trend nationally on the church as a whole realizing anew our responsibility to care for those that can’t care for themselves,” McCoy said.

Brent Leatherwood, director of strategic partnerships at the Ethics & Religious Liberty Commission (ERLC), said while Tennessee had on its books a religious freedom restoration act, legislation designed to protect religious liberty, examples across the nation showed it was not enough.

ERLC, the public policy arm of the Southern Baptist Convention, supported the bill because it said the legislation would ensure faith-based organizations would be treated the same as other organizations into the future.

According to Leatherwood, changes in leadership in other states with similar religious liberty laws — beginning in 2011 in Illinois — meant that faith based agencies in those states were shut down because they refused to place children where they had “deep theological disagreement with that home.”

For instance, Catholic Social Services sued Philadelphia in 2018 because the city stopped placing children with the agency because it did not recruit same-sex foster parents. After the Third Circuit sided with the city, attorneys with the service appealed to the U.S. Supreme Court.

“This is all about making sure the Tennessee Baptist Children’s Homes or other faith-based organizations don’t have to violate their deeply held beliefs, to continue doing their good work. But if there are other couples that want to participate, they absolutely will be able to,” Leatherwood said.

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