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Will a New Texas Law Eliminate Adoptions for Non-Christians and LGBT Families?

Rainbow flag with religious icons

Although Texas currently has hundreds of thousands of children living in foster or adoptive care, the recent enactment of a law designed to shield child welfare providers, those who deny services due to their religious beliefs, may significantly restrict the number, types, and religious affiliations of families who are permitted to foster or adopt a child. Texas House Bill 3859, enacted in June 2017, is likely to face constitutional challenges in the near future, but could have a near-immediate impact on many Texas families, particularly non-Christian and LGBT families who wish to foster or adopt a child.

Shielding Child Welfare Providers

This new Texas law prevents state authorities from taking adverse actions (like stripping state licenses or issuing injunctions) against child welfare providers who deny various services to certain individuals based on their religious beliefs. Although cited as a measure necessary to preserve these welfare providers’ religious freedom, many cite this law as a license to discriminate based on religion, sexual orientation, and other federally-protected characteristics.

In addition to ensuring a child welfare provider will face no legal repercussions for refusing to place a foster child with an otherwise well-qualified same-sex or non-Christian couple, this law also gives state-licensed foster parents the ability to legally refuse to vaccinate their foster children, to deny contraception to foster teens, or even to send foster teens who identify as LGBT to “conversion camps” that promise to eliminate any same-sex attraction.

What Impact Will This Law Have?

This law has already been widely criticized by a variety of civil rights groups and even some Texas law professors, who cite it as overbroad and therefore unconstitutional. Referring to this law as “prejudicial,” California’s Attorney General has already placed a moratorium on state-sponsored travel to Texas; other states that have expanded protections for LGBT foster and adoptive parents may soon follow suit.

Because laws that restrict one of an individual’s fundamental constitutional rights are reviewed under a strict scrutiny standard, meaning that they must be written as narrowly as possible and designed to fulfill a “compelling state interest,” overly broad laws that permit otherwise unconstitutional discrimination or that don’t have a clear and necessary goal are often struck down by the appellate courts. Similar laws in other states, including Michigan, have previously been deemed unconstitutional, although some Texas lawmakers indicate that this is simply a “status quo” extension of constitutional religious freedom laws.

At least one civil rights organization has already announced its intent to challenge this law once it takes effect. Unfortunately, for the issue to be “ripe” and therefore open for appeal, this means that at least one Texas family will have to show that their rights were violated and they suffered harm as a direct result of this new provision. Other organizations (and even state governments) hope that the controversy this law has generated may spur lawmakers to preemptively amend it to better comport with the Texas and federal constitutions, so that no families will be harmed.

It is important to note that although the law has changed in order to protect adoption and foster care agencies from repercussions should they decide against a couple due to their religious beliefs or sexual orientation, there are many more factors to consider when contemplating adopting a child.  Additionally, this new law does not mean that it is impossible to adopt in Texas if you a non-Christian or identify as LGTB; it just means finding an agency that doesn’t discriminate against these qualities.  If you are considering adoption but aren’t sure what the specific adoption laws in Texas are, or how to go about finding an agency that is a good fit for you, contact family attorney Frank Mann.  He will listen to your needs and concerns, and give you informative advice on how to proceed.