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Explainer: Tennessee legislature passes law protecting religious freedom of faith-based adoption agencies

January 23, 2020

What just happened?

In the first law of the new year in Tennessee, Gov. Bill Lee is expected to sign legislation that protects the religious freedom of private, faith-based adoption agencies.

What does the Tennessee law do?

The legislation will prohibit any requirement that a private licensed child-placing agency perform, assist, consent to, refer, or participate in any child placement for foster care or adoption that would violate the agency's written religious or moral convictions. 

Additionally, the law will prohibit the state’s department of children's services from denying an application for an initial license or renewal of a license or from revoking the license of a private child-placing agency because of the agency's objection to participating in a placement that violates the agency's moral convictions. 

All state and local government entities are also prohibited from denying to a private licensed child-placing agency any grant, contract, or participation in a government program because of the agency's objection to participating in a placement that violates the agency's moral convictions. 

Finally, the law prohibits a civil action for either damages or civil relief that is based on the refusal of a private licensed child-placing agency to participate in a placement that violates the agency's moral convictions.

Does this law discriminate against LGBT people?

Critics of the law have falsely portrayed the legislation as being intentionally discriminatory against same-sex couples. Despite the portrayal in the media as being “anti-gay” legislation, the law is not intended to hinder potential parents who are homosexual. 

“It is simply untrue that this law will promote discrimination,” says ERLC president Russell Moore. “The law doesn’t exclude any otherwise qualified organization from serving our state’s children on the basis of their religious convictions or lack thereof. We need everyone working together for our children—even when we disagree on many other important things. This law prevents the state from discriminating against faith-based organizations as they serve and meet the needs of children. It does not restrict others at all.”

As Chuck Johnson, the president and CEO of the nonpartisan National Council for Adoption, has noted, it is a common misconception that the such legislation changes the status quo. Johnson points out that faith-based agencies involved in adoption and foster care have always used religious criteria in deciding whether to serve prospective parents.

“It’s not just the LGBT community—a lot of these agencies only work within their denomination, or they require people to be Christian,” says Johnson. 

Have other states passed similar laws?

Yes. Currently one in five states have passed laws similar to the recent legislation in Tennessee. The 10 states that previously passed such laws are Alabama, Oklahoma, Kansas, Michigan, Mississippi, North Dakota, South Carolina, South Dakota, Texas, and Virginia. (A lawsuit against the Michigan law forced the state to refuse taxpayer-funded, state-contracted child welfare agencies from excluding prospective foster and adoptive parents based on gender identity or sexual orientation.)

A bill with similar language—the Adoption Provider Inclusion Act—was also introduced in Congress last January.

Why are such laws necessary?

In states where such laws do not exist, faith-based providers are forced to either violate their beliefs or required to stop helping to place children in foster and adoptive homes.

As Matt Sharp, senior counsel with Alliance Defending Freedom, observes, since 2006, faith-based providers have been forced out of adoptions and foster care services by local governments in Illinois, Massachusetts, San Francisco, and Washington, D.C. The city of Philadelphia also severed a 50-year relationship with Catholic Social Services because of the local government’s insistence that the religious charity comply with its stance on same-sex marriage and adoption.

Do such laws prevent LGBT people from adopting?

No. Same-sex couples have the choice of participating in foster care or adoption through a state agency or one of the more than 10,000 Child Placing Agencies (CPA). Even if LGBT people were excluded from every one of the 8,000 faith-based CPAs in America, they’d still have options available.

“Same-sex couples and unmarried couples have plenty of options when it comes to fostering or adopting a child,” says Kate Anderson, legal counsel for Alliance Defending Freedom. “Every state has identical requirements for opposite-sex and same-sex couples, and even LGBT advocacy groups admit that there are no state-level restrictions against same-sex couples fostering or adopting.”