The 9th U.S. Circuit Court of Appeals in a split decision Thursday rejected an Oregon administrative rule that barred a woman from becoming a foster parent because she said wouldn’t respect the sexual orientation of an LGBTQ+ child.
Jessica Bates, of Vale in Malheur County, had sued the state, alleging its policy violated her rights to free speech and religious freedom.
Bates, a widowed mother of five, said on her application to become a foster parent that her religious beliefs prevented her from following a rule requiring her to “respect, accept and support” the sexual orientation, gender identity and gender expression of LGBTQ+ children if she were asked to foster them.
Bates, a devout Christian, would not use a child’s preferred pronouns or take a child to receive hormone shots, her lawyer said.
The majority of a three-judge 9th Circuit panel found that the state Department of Human Services policy compelled speech based on views regarding gender identity and violated Bates’ First Amendment rights of free speech and free exercise of religion.
Judges Daniel A. Bress and Michael Daly Hawkins said they recognized Oregon’s valid efforts to promote the health and safety of LGBTQ+ children in foster care but found the state regulation too broad because it prevented Bates from serving as a foster parent to any child.
“It is not narrowly tailored to impose on Bates an extreme and blanket rule that she may adopt no child at all based on her religious faith, for fear of hypothetical harms to a hypothetical child,” Bress wrote for the majority. “We hold that Oregon’s policy violates the First Amendment as applied to Bates.”
The majority ordered U.S. District Judge Adrienne Nelson to enter a preliminary injunction to bar the Human Services Department from using the rule to determine Bates’ eligibility to become a foster parent.
The state could first ensure that if a child identifies as LGBTQ+ or is raising questions about sexuality or gender identity, that child would not be placed with Bates, the majority opinion said.
Judge Richard R. Clifton wrote a dissent, defending the state’s rule as regulating the conduct of foster parents, not their speech. He found the rule advances an important state interest without burdening speech more than necessary.
He called Bates’ desire to foster children “laudable,” but wrote, “The problem, in my view, is that she wants to take them only on her terms.”
Bress, who was appointed by President Donald Trump, and Hawkins, appointed by former President Bill Clinton, joined for the majority ruling. Clifton, appointed by former President George W. Bush, wrote the dissent.
Attorney Johannes Widmalm-Delphonse, of the Virginia-based, conservative Christian legal advocacy group Alliance Defending Freedom that representing Bates, had argued that the state regulation sidelines “every person of faith” by excluding “applicants with views about sexual ethics and the human body that the state does not like.’’
Attorney Thomas H. Castelli, representing the Oregon Department of Human Services, had argued that the state puts paramount importance on the health, well-being and interests of the children in state custody.
The state adopted a variety of rules to protect children, including that future foster or adoptive parents must agree not to expose a child to certain people with criminal backgrounds or remove a child from Oregon.
Castelli argued that the LGBTQ+ respect rule doesn’t infringe on free speech rights, noting the state isn’t asking parents to “affirm or advocate” for a child who identifies as LGBTQ+ but to “accept, respect and support” the child’s preferences and identification, he said.
“It doesn’t mean a parent has to take the children’s beliefs and make them their own,” Castelli said.
Alliance Defending Freedom’s senior counsel Johanthan Scruggs applauded the decision.
“The 9th Circuit was right to remind Oregon that the foster and adoption system is supposed to serve the best interests of children, not the state’s ideological crusade,” he said by email.
Jenny Hansson, spokesperson for the Oregon Department of Justice, said Thursday, “We are disappointed in the ruling but are reviewing to determine next steps.”
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