Supreme Court adoption case could have national impact on religious liberty

Washington, D.C. Newsroom, Oct 28, 2020 / 14:30 pm

As the Supreme Court prepares to hear a case touching religious liberty and adoption next week, one Washington couple will be watching closely.  

In 2019, Gail Blais and her husband James wanted to adopt her biological great-granddaughter, who is now just over one year old and currently in foster care. They were prevented from doing so by the state of Washington, because of their religious views against hormone therapy for gender dysphoria. The Blaises are Seventh-day Adventists.

As the Supreme Court hears oral arguments in another religious foster care case on Nov. 4, Fulton v. Philadelphia, its ruling could impact a number of other cases including the Blais's.

"It shows what is coming next," said Becket senior counsel Lori Windham on a conference call with reporters on Wednesday.

In the Fulton case, Philadelphia stopped contracting with local Catholic Social Services (CSS) on foster care referrals because CSS refused to work with same-sex couples. The city told CSS that it had to change its religious practice and work with same-sex couples, after which Philadelphia-area foster mothers joined CSS in suing the city, alleging a violation of religious freedom.

The case could decide the fate of other religious adoption agencies facing nondiscrimination ordinances, but according to Becket-which represents CSS-it could also impact prospective foster parents like the Blaises.

"If you are able to kick out these religious foster care agencies," Windham said of Philadelphia's ordinance, the next logical target for state and local nondiscrimination rules are "parents who have traditional views about marriage and sexuality."

In Sept., 2019, Gail Blais's biological great-granddaughter was born in Idaho but placed in foster care by the state. Gail and her husband James, who live in neighboring Washington, wanted to adopt the child but would have to receive a foster care license to do so. The licenses are dispensed by the Washington Department of Children, Youth, and Families.

A licensor from the state, Patrick Sager, then conducted a home visitation and interviewed the Blaises. He posed a series of hypothetical scenarios to the couple, asking them how they would react if their child eventually identified as a lesbian, or if she developed gender dysphoria and wanted to receive hormorne therapy.

The state department had enacted a policy in 2018 that forbids "discrimination or harassment" for children who identify as LGBTQ+ or are questioning their orientation.

According to district court Judge Salvador Mendoza, Jr., who eventually ruled in the Blais's favor, the department apparently "applies Policy 6900 to prospective foster parents," and the department sought to ensure an environment in foster homes that would affirm gender transitioning and LGBTQ+ ideology.

When the Blaises responded that they would love and support the child but could not assent to hormone therapy-according to their religious beliefs as Seventh-day Adventists-Sager was "alarmed," according to court documents.

After that meeting, the Department sent the Blaises material on LGBTQ+ children and asked them to review it to "make a more informed decision about supporting LGBTQ+ youth in foster care."

When Sager followed up with the Blaises on their application for a foster care license, the couple reiterated their faith-based stance against hormone therapy.

He asked them another series of questions, seeking their reactions to various scenarios involving their foster child: dressing as a boy, identifying as a lesbian and wanting to bring her girlfriend on a family trip or having a doctor's order for hormone therapy.

When the Blaises repeated their faith-based stance to support their child but refuse to recognize fluid sexual orientation or gender identity, Sager encouraged them to drop their application - which that made in order to care for their own great-grandchild.

At a third meeting between the Blaises, Sager, and the Department's LGBTQ+ head, the Blases answered in the same way as before.

The Department concluded they had reached an "impasse" in the process, after which the Blaises sued. The Department then denied their application for a foster care license.

The Blases then asked the court for a preliminary injunction granting them a foster care license. On Oct. 8, they won their case-in part. Judge Mendoza ruled that they couldn't be denied a license based on their religious beliefs, but as they had not completed all the steps of the application process, he wouldn't grant them a license. Instead, the Department would give them time to complete the necessary steps.

Mendoza called the Department's policy a "religious gerrymander" against members of certain creeds.

"The Department denied the Blaises the privilege and benefit of providing foster care because of their sincerely held religious beliefs," he wrote.

While the Department can take LGBTQ+ matters into account when considering prospective foster care licensees, it cannot make rulings based on hypotheticals-as it did with the Blases, Judge Mendoza wrote.

"If the only factor weighing against an otherwise qualified applicant has to do with their sincerely held religious beliefs, the Department must not discriminate against a foster care applicant based on their creed," he said.