By Thomas E. Joaquin, Esq.
The two-year anniversary of Obergefell v. Hodges, the US Supreme Court decision recognizing the constitutional right of same-sex couples to marry, will occur on June 26th. It would be difficult to overstate either the importance of Obergefell to the LGBTQ community, or the anger the decision caused in a number of states. By affirming the constitutional right – indeed the human right – to family, Obergefell took away from state governments the ability to directly ban marriage between lesbian and gay couples. But the fervor of religious and conservative groups around the issue hasn’t subsided, and lawmakers in many states still chafe at what they see as an encroachment by federal judges into matters they believe should be determined locally. So state legislatures, frustrated by their loss, have turned to Plan B: a flood of legislation intended to indirectly suppress the creation and support of LGBTQ families. Many of these proposed laws are broad enough to target the families of people who are Muslim, Jewish, immigrant, unmarried, single-parent and others.
The ACLU has estimated that the number of proposed anti-LGBTQ bills would top the 200+ bills that were introduced in 2016. Many are duplicative of laws proposed or already passed in other states. Texas’s proposed “Freedom to Serve Children Act,” discussed in this article, for example, is similar to laws passed in six other states, including Mississippi, where the law has already been overturned and stayed, pending appeal. I’ve chosen two bills in two states that have taken a significant step in the legislative process over the past week, to provide an idea of the ongoing challenges to our human right to family: a bill in Texas that, if passed, would allow adoption and child welfare services agencies to discriminate on religious grounds; and a uniquely devious Tennessee bill, aimed at enforcing husband/wife distinctions in pre-Obergefell statutes to justify discriminatory application of the law to same-sex couples.
Texas House passed a bill that would allow child services agencies to discriminate based on their “sincerely held religious beliefs”
The Texas legislature is currently considering HB3859, known as the “Freedom to Serve Children Act,” a bill that would allow adoption, child services and foster care agencies, including those receiving state funds, to discriminate on the basis of religious belief. The scope of this proposed bill is breathtaking. Agencies, including those spending taxpayer dollars, would be free to reject Muslims, Jews, single or divorced, and, of course, lesbian, gay, bisexual, transgender, queer and polyamorous families who want to adopt or foster a child. The law would also allow child services agencies to impose their religious beliefs on children, deny them access to contraceptives and abortion services, and force them to attend religious schools, and religious education classes without regard to their own religious beliefs or upbringing. Perhaps worst of all, LGBTQ children could be forced to undergo “conversion therapy” (sometimes called “reparative therapy), which has been known to cause depression, anxiety and self-destructive behavior in those subjected to it.
There couldn’t be worse time for Texas to pass this bill, given the condition of the state’s Department of Child Protective Services (DCPS), which has been struggling with a $40 million dollar budget deficit, a critical shortage of foster homes, overwhelming caseloads and a constant shortage of experienced child-care workers. Texas Governor Greg Abbott called the issue “an emergency item,” for 2017, and a number of bills to fix the broken system are in various stages in Texas’s House and Senate.
It’s wildly irresponsible, under these circumstances, to pass a law that will result in fewer families available and willing to adopt or foster these children. In April, the Dallas News addressed the issue, pointing out that gay and lesbian parents are “an untapped resource” for children in foster care:
Gay and lesbian foster and adoptive parents make exceptional parents and research overwhelmingly suggests that children raised by gays and lesbians are just as healthy, happy and successful as children raised by straight parents…. In addition, gay and lesbian foster parents are much more likely to take youth into their homes who have historically been more difficult to find stable placements for, including teens of color, LGBTQ youth, and large siblings groups. More than half of children who are adopted by gays and lesbians have special needs and nearly 60 percent of gay and lesbian parents adopt or foster across race.
Yet, faced with budget shortfalls and state child welfare services stretched too far to provide minimal protections to an ever-growing number of vulnerable children, the state of Texas has opted to make it more difficult for willing LGBTQ parents and others targeted by this law, to adopt or foster children.
The current legislative session ends May 29, 2017. The proposed “Freedom to Serve Children Act,” was passed by the House this week, on May 9th. It is expected to pass the Senate easily and to be signed by Governor Abbott. Clearly the “freedom” to exercise bigotry and intolerance are more important than the wellbeing of Texas’s children.
Tennessee’s “natural and ordinary meaning” law.
On May 5th, Tennessee’s governor signed into law a bill that seems almost innocuous. The new law consists of a single sentence:
As used in this code, undefined words shall be given their natural and ordinary meaning, without forced or subtle construction that would limit or extend the meaning of the language, except when a contrary intention is clearly manifest.
The underlying intent of this legislation becomes clearer when it’s compared to an earlier version of the bill that specified just four words that would be given their “natural and ordinary meaning”: “husband,” “wife,” “mother,” and “father”.
The “natural and ordinary meaning” law was written after the State Attorney General determined that a law providing that “a child born to a married woman as a result of artificial insemination, with consent of the married woman’s husband, is deemed to be the legitimate child of the husband and wife.” was unconstitutional. The AG’s decision was written at the request an appeals court judge considering a decision about child custody in a case concerning a divorce between a lesbian couple. (Tennessee requires courts to obtain a memo from the Attorney General in cases involving constitutional issues.)
Erica and Sabrina Witt, the divorcing couple, had one child, born to Sabrina, using artificial insemination. In considering custody of the child, the lower court judge rather pedantically held that the only Sabrina, the birth mother, was the legal parent of a child. Erica was Sabrina’s spouse, but she was clearly not a “husband” as required by the statute.
When Erica appealed, no fewer than seventy-one Republican legislators, represented by the radically conservative Tennessee Family Action Council, filed motions to intervene, hoping to convince the judge that the trial court decision was correct, and that writers of the decades-old statute used the word “husband” with the intent of someday depriving lesbians of parental rights. The appellate judge denied the motions to intervene on the grounds that there was no reason for half of the state legislature to be involved in this divorce case.
David Fowler, the President of Tennessee Family Action Council responded by calling judges “a black-robed oligarchy.” The legislature took a more practical course and began work on the “natural and ordinary meaning” bill to make it clear that in Tennessee, the word “husband” means “husband”.
This history that eventually resulted in the bill was reported by the press, so it was odd that Governor Bill Haslam, after signing the bill into law, denied any discriminatory purpose: “The language of this bill is for a general definitions section of the Tennessee code, which defines “road” and “sheriff,” among other common terms…”
Coincidently, the bill was signed just four days before the appellate court made its final ruling in the original divorce case. The court decided that Erica had parental rights, thus granting a woman the legal rights of a husband for the first (and possibly last) time in Tennessee.
Four days after the new law was signed, four lesbian couples, each of whom had conceived a child using artificial insemination, challenged the law in court on equal rights and due process grounds. Those cases are pending.
I’ve outlined the details of these two laws to demonstrate the harm that can result when laws encourage citizens to act on their worst impulses. Hundreds of bills like these will be proposed this year, and some will become law. Those who champion these laws are emboldened by their successes, and by state and national politics that appear to support them. The President, for example, recently signed an executive order requiring members of his cabinet to “issue guidance interpreting religious liberty protections in Federal law.” It doesn’t matter that the order is unlikely to have any real consequences; it sends a message that overtly discriminatory legislation is encouraged at the highest levels of government.
It’s clear that all of us need to keep fighting to protect the human right to family. If we don’t, it won’t be only LGBTQ families who lose out. Join us at Woodhull in affirming and protecting the rights, recognition and respect that all families need and deserve.