Last week, South Dakota governor Dennis Daugaard signed a bill into law that allows tax payer-funded adoption agencies to deny services to LGBT people. The bill, known as SB 149, specifically states that religious-based adoption agencies can turn away people who behave in a way that conflicts with their “sincerely-held religious belief or moral conviction.”
The bill was framed by lawmakers as a protection of religious rights, stating that the state can't do anything against an adoption agency that has declined or will decline service that goes against their "written sincerely-held religious belief or moral conviction." SB 149 makes it clear that adoption agencies can’t discriminate against people based on race, ethnicity, or national origin—with no mention of sexual orientation.
The law is portrayed as a way to protect religious freedom, but “everything we know about religious exemption laws points to the fact that they’ll be used to discriminate against LGBT people,” Ryan Thoreson, Yale Law School Robert L. Bernstein International Human Rights Fellow at Human Rights Watch and author of Transnational LGBT Activism: Working for Sexual Rights Worldwide, tells SELF.
Human rights groups like the American Civil Liberties Union (ACLU) and Lambda Legal immediately responded, calling the bill “anti-LGBT.” Sarah Kate Ellis, president and CEO of GLAAD also had this to say on Twitter:
Children will be the ones to suffer.
Sarah Warbelow, legal director for Human Rights Campaign, said in a statement to SELF that she’s concerned that children who are waiting to be adopted will ultimately suffer. “These children could now wait longer to be placed in a safe, loving home at the whim of an state-funded adoption or foster care agency with a vendetta against LGBTQ couples, mixed-faith couples or interracial couples—all while being taxpayer-funded,” she said.
Not only that, she points out that LGBTQ children in South Dakota’s foster care system are at risk of staying in a system that doesn’t recognize their identity and “actively works against the child’s well-being by refusing to give them appropriate medical and mental health care.” “There is a never a legitimate reason to allow an adoption agency to focus on anything other than the best interests of a particular child, and on finding the best available home for that child," Shannon Minter, legal director for the National Center for Lesbian Rights, tells SELF.
The law is legal, but iffy because it allows government-funded discrimination.
The law also doesn’t impose any limits on what those beliefs may be, Minter points out. “While it is clear that the motivation behind the law is to enable agencies to discriminate against same-sex parents, the law is unlimited and would also allow agencies to discriminate based on beliefs about women, interracial couples, or persons from other religious faiths,” he says. “This is a dangerous path to go down, and it is very unfortunate that South Dakota has enacted such a radical law.”
There's no federal law that prohibits discrimination based on sexual orientation or gender identity, Minter says—and South Dakota doesn’t have a law prohibiting it either. Supporters of the law argue that LGBTQ people can simply go to another adoption agency, but Thoreson says that can be difficult for people living in more rural areas who don't have access to a lot of options. “There’s also a real value in the importance of allowing everybody to have access to the same services,” he says.
But M. Currey Cook, Counsel and Youth in Out-of-Home Care Project Director at Lambda Legal, tells SELF that laws like SB 149 are likely to be found unconstitutional by courts if they're legally challenged since they "sanction government-funded discrimination" under the guise of religious freedom. "LGBTQ individuals and same-sex couples must be treated equally under the law and these laws allow states to use government-funds to discriminate," he says. On top of that, federal regulation doesn't allow federal funds to be used by state child welfare agencies and their contract providers to discriminate due to sexual orientation and gender identity, he says.
Cook points out that not all faith-based adoption agencies will utilize this law. "The majority treat LGBTQ people fairly, but these bills send a message that is OK for some to use government funds to discriminate and that is prohibited under the law," he says.
South Dakota isn't the only state doing this.
Despite the legal iffiness, the ACLU reports that SB 149 isn't a one-off: It's just one of a number of similar bills that are advancing in state legislatures across the country, including Texas, Oklahoma, Alabama, Arkansas, and Tennessee.
There are currently more than 100 anti-LGBTQ legislative proposals in 29 states, Stephen Peters, national press secretary for the Human Rights Campaign, tells SELF. Some bills allow discrimination during adoption while others focus on healthcare, employment, and housing. “The danger is very real as these are blatant attacks on fairness and equality for LGBTQ people by activists who are feeling emboldened around the country,” Peters says.
Thoreson says SB 149 sets a “dangerous precedent” of discrimination that “makes LGBT people second-class citizens.” “If you can deny them services in adoption, why not in counseling, medical care, spousal benefits?” he says. “There is such a wide range of things that non-discrimination law covers, and if you start to carve out exemptions in one area, it starts to set a dangerous precedent in others.”
Rose Saxe, ACLU senior staff attorney, agrees. “We have seen the discriminatory impact of these kinds of religious exemption measures in a variety of ways including religiously affiliated hospitals denying lifesaving healthcare to women on religious grounds, and we've even seen business owners like bakers and florists refusing to serve same-sex couples because they claim homosexuality violates their beliefs,” she tells SELF. Religious freedom is important, she says, but using religion to “harm or discriminate against others undermines our most sacred American values.”
If you’re concerned about these laws showing up in your state, the ACLU has a breakdown online of states that are circulating similar legislation. If your state is one of them, experts urge you to contact your local representative and express your views. Saxe also recommends speaking out and mobilizing people in your community. “Make the case that there will be not only economic consequences, but also political consequences for supporting these bills,” Saxe says.
Minter says it’s also important to reach out to people who don’t share the same viewpoint as you. “In this polarized political environment, we encourage individuals to take the time to get to know those with different views and to have more open conversations,” he says. “These laws are based on irrational fears about LGBT people, and the more we can get to know one another as individuals, the more we can prevent hasty legislation that will cause real long-term harm to children and families.”
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This story originally appeared on Self.
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