Ninth Circuit Court rules Christian mother in Oregon be allowed to adopt siblings – Catholic World Report

After two years, the Ninth Circuit Court finally put the welfare of two siblings who were in foster care ahead of gender ideology. Reversing an earlier order to the contrary, the court found that because Jessica Bates, a widowed mother of five in Oregon, was likely to prevail in claiming that officials violated her First Amendment rights to the free exercise of religion in rejecting her application to adopt the children, they must reconsider her request.

Following this victory for parental rights and religious freedom, this column reflects on the dispute’s history before reflecting on its significance.

Bates v. Pakseresht

As noted, Jessica Bates unsuccessfully attempted to adopt two siblings who were then under the age of nine. She sought to adopt the children because of her Christian beliefs about caring for orphans and seeking justice for the fatherless. Aware that some families are reluctant to adopt two children simultaneously, Ms. Bates did not want either sibling to feel alone or isolated.

Officials of Oregon’s Department of Human Services rejected Bates’ application because she refused to acquiesce to state policy that she agree to “respect, accept, and support” the sexual orientations, gender identities, and gender expressions of children, even though this was not an issue. Regardless, Bates told officials she would happily love and accept any child placed with her family. Oregon also obligates adoptive parents to undergo sexual orientation and gender identity training.

Disappointed but not deterred, Ms. Bates filed suit with the assistance of Alliance Defending Freedom, the “world’s largest legal organization committed to protecting religious freedom…and God’s design for marriage and family.”

Ms. Bates claimed, most notably, that officials violated her First Amendment rights to the free exercise of religion and speech in trying to coerce her to disregard her Christian beliefs, objecting to using preferred pronouns or taking adopted children to medical appointments for gender transitions.

As I recounted in a previous column (my first for Catholic World Report), the federal trial court in Oregon allowed officials to deny Ms. Bates’ application to adopt the children. Bowing to ideology, the court preferred to leave the children in foster care rather than place them in a permanent loving home environment.

On appeal, a divided Ninth Circuit reversed in Ms. Bates’ favor, ordering officials to reconsider her application because she is likely to succeed on the merits of her First Amendment claims.

The court reasoned that “[n]o one thinks, for example, that a state could exclude parents from adopting foster children based on those parents’ political views, race, or religious affiliations.…a state’s general conception of the child’s best interest does not create a force field against the valid operation of other constitutional rights.” The court explained that “the Free Exercise Clause protect[s] religious exercises, whether communicative or not,” and “the Free Speech Clause provid[es] overlapping protection for expressive religious activities.”

The court next conceded that “[w]e are willing to accept on this record that Oregon intended to act in the best interests of children, and not out of hostility or animus toward religion.”

Still, observing that the policy was not neutral toward religion, the court determined that Ms. Bates’ claim was subject to strict scrutiny. This is the most stringent form of constitutional analysis, which requires state actions limiting fundamental rights, including religion, to be justified by compelling governmental interests. When courts apply strict scrutiny, the government usually loses.

The court thus granted Ms. Bates’ request for a preliminary injunction prohibiting Oregon officials from using the disputed policy when evaluating her eligibility to adopt.

The dissenting judge disagreed, arguing that the policy regulated parental conduct rather than their speech, ignoring that it would have prevented Ms. Bates from speaking about her faith.

Reflections and analysis

While this round of litigation is a victory for Ms. Bates, the dispute will continue because the court did not resolve the policy’s constitutionality, an issue to be addressed at a later date. This battle is also far from over nationally because not all states protect the religious freedom rights of foster and adoptive parents on issues involving sexuality.

On the one hand, for example, Arkansas and Kansas adopted laws protecting the religious freedom rights of adoptive and foster parents on matters involving sexuality. Conversely, a federal trial court judge rejected the plea of two Christian families after Vermont officials revoked their licenses to serve as foster parents because they disagreed with the state’s anti-discrimination rule. Both families refused to comply with the rule expressly prohibiting foster parents from discriminating against foster children due to their sexual orientation or gender identities because this would have conflicted with their Christian faiths.

Yet, in neither situation was a child “transgender” or “gay”. The parents have appealed to the Second Circuit.

Ironically, many of those promoting gender ideology, whether in Oregon, Vermont, or elsewhere, talk about “respect.” However, these advocates refuse to extend the same courtesy to individuals with whom they disagree, ignoring the reality that respect is supposed to be a two-way street. Instead, these advocates attempt to compel others to accept their perspectives even if doing so violates their religious beliefs while placing innocent children in the crossfire, denying them the loving, stable homes they need.

A century ago, in Pierce v. Society of Sisters the Supreme Court, acknowledging the authority of parents to have their young educated in the schools of their choice, declared that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

Accordingly, while states have the duty to ensure the well-being of all children, particularly those needing foster and adoptive homes, they cannot trammel the religious freedom rights of parents with whom they have ideological differences. Consequently, a significant First Amendment question arises when states refuse to permit otherwise qualified parents from adopting or fostering children based on their fundamental right to religious freedom due to sexual ideology. Consequently, as in Ms. Bates’ case, when courts subject laws or policies that infringe on individuals’ fundamental constitutional rights, states typically lose.

What happened to Ms. Bates and others stands Pierce on its ear because officials are violating their constitutional rights by denying them the ability to raise children in a manner consistent with their faiths. Ideology aside, it is perplexing why officials would deny loving, caring homes to needy children because they disagree with the religious beliefs of prospective adoptive or foster parents who are otherwise qualified to care for these youngsters.

The status of Ms. Bates and Christians elsewhere calls to mind Justice Alito’s dissent in Obergefell v. Hodges wherein the Supreme Court enshrined a heretofore previously undiscovered right to same-sex unions. Alito feared recent attitudinal changes on sexuality may be “used to vilify Americans who are unwilling to assent to the new orthodoxy…I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.”

In light of the Declaration of Independence’s proclamation that fundamental rights, including religious freedo,m come from their Creator, God, not the government, as a senator recently mistakenly suggested, my hope is that people on both sides of this issue will be mindful of Justice Alito’s caution by treating believers equitably.

If so, perhaps individuals of good faith can focus on the best interests of children who need, but risk being deprived of, permanent loving homes, rather than ideology. By safeguarding the rights of people of faith as exemplified by Jessica Bates to live in accord with their religious beliefs by helping the least among us, then these Christians will give living witness to Jesus’ words to “let the little children come to me, and do not hinder them, for the kingdom of heaven belongs to such as these.”