Texas, following South Dakota, has passed a law that will enable adoption services to refuse adoptions to non-Christians. The new law travels under the misnomer “Freedom to Serve Children Act.” The subject matter of the law has always been difficult for Indians, whether it’s children needing a home or adults seeking to adopt.
In the 2010 census, Texas was fourth in Indian population, behind California, Oklahoma, and Arizona. Still, the Indians there are spread across a very large state and there are only three tiny reservations. That means the Indian population is near-invisible and there is no reason to think this new law was aimed at it. There is plenty of reason to think it will have a disproportionate impact on Indians and greatly complicate the goals of the Indian Child Welfare Act. There are already plenty of roadblocks to adoption for non-Christians or non-traditional couples.
When I was practicing law in Texas, adoptions were the only part of family law I enjoyed, because everybody came to the courthouse happy and left the same way. Divorces always seemed to come in different shades of ugly. I preferred criminal law to that. Would you rather see bad people at their best or good people at their worst?
Of course, I practiced law in the People’s Republic of Austin, so I got spoiled. I once ventured to a rural county for the very easiest kind of adoption—a step-parent wanted to adopt and the biological parent did not object.
All adoptions in Texas require a social study to determine the fitness of the adopting family. In Austin, those studies were prepared by a government agency. I could find nothing similar in the phone book so I left the identity of the agency to do the study blank when I went to the uncontested docket to get a judge to sign the order for the social study.
When called, I approached the bench and handed the order to the judge. I explained the blank and he was not at all surprised since I was from out of town.
“OK, which minister do you want to do the social study?”
I said I’d have to discuss it with my clients but I did not think they would want a Christian minister because one was a non-observant Jew and the other was an atheist.
“Well, that’s the way we do things here, so you have to pick a minister. We have two Methodists, a Presbyterian, Church of God, Disciples of Christ, and lots of different kinds of Baptists. There’s a Catholic Church, but they don’t have a priest right now. I would be OK with whoever the Diocese in Austin sends over. They’ve been good about helping out.”
“Judge, you can’t do that.”
“Can’t do what?”
“Require a Christian minister to approve an adoption. That’s an establishment of religion.”
“You practice in Austin, right? You sound like it. If you are going to be practicing here, you need to learn a few things…”
Just as I was puffing up to say some things I’m sure he would have made me regret, a classmate from law school stepped up and asked the judge to recall the case so we could consult.
I hadn’t seen this lawyer since graduation, but because his last name, like mine, started with R, we were often seated next to each other in classes. He saved my ass by convincing the judge to appoint him to do the social study.
That close call came to mind when I learned that the Freedom to Serve Children Act passed the Texas Senate, 21-10. It passed the House some time ago, 94-51. I include the numbers for a partial explanation when I say it is going to become law. The Texas Governor has no pocket veto. If he does not sign, it still becomes law, but I am predicting he will sign.
The bill protects the rights of child welfare service providers to discriminate according to their religious beliefs. It waives sovereign immunity so they can sue any state agency that tries to take business away from them because of, say, excessive indoctrination. It provides that their religious beliefs are a defense if someone damaged by how their beliefs limited options for a child tries to sue them.
Quoting from the bill analysis, the law cannot be construed “to allow a provider to decline to provide, facilitate, or refer a person for child welfare services on the basis of that person's race, ethnicity, or national origin.” Note what is missing from that list? Religion. Sex. Gender. Sexual orientation.
While the objective of the bill appears to be to make the world safe for the poor, oppressed Christians of Texas, it does so by placing children in need of services often provided by church-affiliated agencies at the mercy of the church’s idea of what is right.
If the church believes that a child is better off with no parents than with gay parents, the law will back up the church. If the church believes that a teenage girl should not have access to birth control, the law will back up the church.
As I read the bill, not only do Christian service providers not have to provide services that violate their beliefs, they cannot even be forced to refer a child to someone who could render the service. Of course, this is aimed at abortion, but it hits much more.
The bill contains more contradictions than the Christian gospels. One part of it says providers do not have to refer a child for services they won’t provide, but another part says they can’t deny medical care to a child. It does allow the Department of Family and Protective Services to intervene and seek care, but that assumes the state agency will find out about the need in a timely manner.
This law is unlikely to create problems for Indians who are willing to hew to the Christian line, but Texas is home to lots of Indians who follow the Native American Church. It appears to me from the outside that NAC people are as Christian as Mormons are, but I doubt that most Christians in a position to place children for adoption would see it that way, or know the difference between peyote and heroin.
Then there are always some Indians still doing their best to follow traditional beliefs. (Where we say “traditional,” many Christians who demanded this bill would say “heathen.”) Other Indians let go of their traditional beliefs but still did not buy what the missionaries were selling. They end up like a lot of white people: not atheists or even agnostics but rather “unchurched.”
My 1978 experience in court showed that unchurched people faced challenges when they wanted to adopt. Gay people face even more challenges. Indians have historically faced enormous challenges in foster care and in adoptions that led to passage of the Indian Child Welfare Act.
The Texas Legislature, apprehending that there might be a problem with religious discrimination in the child welfare system, has ridden to the rescue….of the persons doing the discriminating.