How the Equality Act would impact faith-based child placement agencies

(ANALYSIS) On Feb. 25, the Equality Act, a bill that would ban discrimination against people based on sexual orientation or gender identity, passed in the House of Representatives with the support of all Democrats and just three Republicans. It’s not yet clear if the Senate will pass it. Critics point out that the Equality Act would scrap exemptions for religious freedom, setting up various conflicts between the act and religious groups.

Implications of the Equality Act for Faith-Based Child Placement Organizations

The legal implications of this bill are many and complex. One area where the Equality Act would have specific impacts is on child placement. This proposed legislation explicitly bans discrimination in federally funded programs on the basis of sex, sexual orientation and gender identity.

What would this mean for religious child placement agencies that placed children according to their theological precepts?  

Both LGBT advocates and religious freedom advocates agree that the Equality Act would ban faith-based adoption and foster care agencies which placed children exclusively in homes with heterosexual married parents, according to their religious beliefs, from partnering with the federal government.

Human Rights Campaign (HRC), an LGBTQ rights group, describes the implications of the Equality Act for faith-based child placement organizations in detail: “Child welfare agencies are prohibited from considering a prospective parents’ sexual orientation, gender identity, or sex when making placement decisions.”

Heritage Foundation, one of the most recognized organizations advancing the interests of conservative Christians, stated a similar understanding of the implications of the Equality Act on religious child placement providers: “Faith-based adoption and foster care providers would risk losing federal funds if they decline to place children with same-sex couples. This in turn could lead to these providers being forced to close.”

The fact that HRC and Heritage Foundation agree on what the Equality Act would mean for theologically conservative faith-based adoption and foster care agencies clearly does not mean that they agree about whether this bill should be made law.

HRC and other LGBT rights groups support the Equality Act explicitly because it would exclude theologically conservative religious services providers which cannot, based on their faith, accept LGBT couples as prospective parents. In stark contrast, some religiously and socially conservative groups, such as the Heritage Foundation, explicitly oppose the Equality Act for the very reasons HRC supports it. This bill would, among other implications, limit the capacity of theologically orthodox faith-based adoption and foster care providers to continue to partner with the government in serving children without sacrificing their religious beliefs. 

Just about a week after the passage of the Equality Act in the house, Bethany Christian Services, one of the nation’s largest Christian child-placement agencies, announced it was immediately opening its services across the nation to LGBTQ parents.

Bethany, an evangelical agency, provides child welfare services in 32 states. In 2019, Bethany facilitated more than one thousand adoptions and over three thousand foster care placements.

“We’re taking an ‘all hands on deck’ approach where all are welcome.” stated Chris Palusky, the child placement agency’s president and chief executive, in an email to staff. The email continued: “We will now offer services with the love and compassion of Jesus to the many types of families who exist in our world today.”

Why Did Bethany Christian Services Change Course?

Throughout Bethany Christian Services’ over seven decades of service to vulnerable children and families, it has predominantly operated out of a historic, orthodox theological understanding of marriage as between one man and one woman. Bethany’s formal position, adopted in 2007, stated: “God’s design for the family is a covenant and lifelong marriage of one man and one woman.”

In the last several years, Bethany has faced legal challenges to its religiously based child placement practices from states and municipalities where it held contracts. In places such as Michigan and Philadelphia, Bethany began to change its practices and place children with LGBTQ in order to keep its contracts. In the last two years, Bethany has chosen to comply with local and state laws that mandated facilitating child placements with LGBTQ, people rather than going out of business altogether.

There has been much speculation about the root causes of Bethany’s decision to begin placing children with LGBTQ prospective parents. Certainly, Bethany’s announcement emerged in a legal and cultural context that has become increasingly challenging for religious child welfare organizations with theologically orthodox views on family structures and sexuality. Additionally, this decision also reflects complex sociological and cultural shifts from within American evangelicalism itself.

In addition to the Equality Act, Bethany’s announcement comes on the heels of a major Supreme Court case to be decided this Spring regarding whether the city of Philadelphia can exclude Catholic Social Services, a faith-based agency, from the foster care system because of its religious beliefs. This case started with a 2018 complaint against the city of Philadelphia, which cited both Catholic Social Services (CSS) and Bethany Christian Services as foster care agencies which excluded same sex couples as foster parents. According to The Hill: “In response, Philadelphia said it would no longer refer children in the city's care to these agencies unless they complied with the nondiscrimination requirements in their contracts.” In response to this pressure, Bethany opted to accept LGBT people as foster parents, rather than lose its contract with the city and/or pursue prolonged litigation.

As Becket has stated, faith-based child placement providers from across the country are deeply concerned about the growing legal challenges they face to remain free to serve: “Without help from the Supreme Court, many of the over 8,000 faith-affirming providers across the country—and the families they serve—will be forced out of the foster care system, leaving children in need with fewer loving homes. They want to be part of the solution to this crisis, too.”

Is it LGBT Nondiscrimination Laws, or Something Deeper, Pressuring Religious Providers to Change Course?

Some would argue that the passage of the Equality Act, and similar legal measures from states and localities, would force many more theologically conservative child placement agencies into the untenable choice between compromising with “principles that are so fulfilling and so central to their lives and faiths” in complying with LGBT legal nondiscrimination protections or risk going out of business.

This is largely true. If the Equality Act were to become federal law (and nothing else changed) theologically conservative adoption and foster-care agencies would most certainly lose federal funding if they continued to exclude LGBT couples from becoming prospective parents.

Yet, that is not the whole story. The Supreme Court case mentioned earlier in this article could uphold the First Amendment freedoms of thousands of theologically conservative foster care agencies across the country. As Becket stated: “Faith-affirming foster care and adoption providers nationwide are looking to the Supreme Court to protect their religious freedom. Without help from the Supreme Court, many of the over 8,000 faith-affirming providers across the country—and the families they serve—will be forced out of the foster care system.”

A decision is expected in June and hope is not unfounded for theologically conservative child placement agencies. So, legal challenges to religious freedom, at best, are only part of the picture of why evangelical groups like Bethany are preemptively changing course. There is a deeper sociological explanation for this, according to Dr. Brad Vermurlen, a sociologist at The University of Texas at Austin and author of the book Reformed Resurgence: The New Calvinist Movement and the Battle Over American Evangelicalism:

“The sexual and gender revolutions have been seeping into some segments of evangelical Protestantism for decades. So it is not really surprising that a major evangelical adoption agency would change its policy and start placing children with two men or two women.” Vermurlen continues: “Bethany Christian Services likely thinks they are holding to the Christian scriptures, as they understand and interpret them. The thing is, in evangelical Protestantism nowadays there are very few and only weak institutional mechanisms for anyone to call balls and strikes on theology and social issues. This is a decentralized, highly adaptive religious expression with a democratized approach to interpretation. It is best to face the fact: Sociologically, the recent change at Bethany is evangelical Protestantism in the United States today.”

And so, although looming LGBT nondiscrimination laws may hasten some agencies to change their practices, at least for those faith-based providers within the umbrella of evangelicalism, sociological forces and fragmentation from within may hasten changes even faster.

Chelsea Langston Bombino is a believer in sacred communities, a wife, and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.