A new law in Arizona empowers faith-based foster care and adoption agencies to reject prospective parents based on their religious views without fear of a lawsuit.
There has been widespread criticism of the law, including from opponents who say the new law will make it harder for some parents to adopt, amid a massive backlog of foster cases. At a minimum, the law could make it possible to dilute the pool of adoptive parents, just when the state needs them most.
It's a particular concern among Jewish and LGBTQ families in rural counties. That's because the Jewish and LGBTQ communities historically adopt at higher rates than other groups, and because the only adoption agencies in rural Arizona are run exclusively by Protestant organizations.
Jewish parents adopt at rates higher than any other religious group, with more than 5 percent of Jewish families adopting a child, according to The National Jewish Population Survey. Jewish parents are nearly three times as likely to adopt compared to the general American population.
A 2020 report from the Williams Institute at the University of California-Los Angeles found LGBTQ parents are seven times more likely to raise an adopted child, with nearly 15 percent of same-sex couples going the adoption route.
Some Jewish and LGBTQ community groups fear those adoption agencies, bolstered by the new legal immunity, will refuse to place foster kids in such homes.
But the numbers don't match the outrage, leading supporters of the law to argue the backlash is rooted more in emotion than hard facts. By the same token, there's no evidence of a widespread problem of agencies getting sued, either.
The state's licensed adoption agencies place about four of every five adoptions. Most of these agencies are supported by taxpayers, more than any other state.
Only a quarter of those agencies are faith-based, and they processed 20 percent of Arizona's adoptions in 2019. It's unclear exactly how many children are placed by faith-based agencies, specifically.
A search of statewide court filings did not reveal a single religious discrimination lawsuit against any of Arizona's faith-based Christian foster care licensing agencies.
Still, Senate Bill 1399, which Governor Doug Ducey signed into law earlier this month, was carried by an influential Christian anti-LGBTQ lawmaker who wanted to protect owners of faith-based foster and adoption services from lawsuits stemming from bygone anti-discrimination statutes.
In 2015, Ducey vowed to be “unapologetically pro-adoption” when he nixed a policy that barred married same-sex couples from adopting or becoming foster parents. Ducey was adopted as a child.
This new law prohibits anyone, including the state government, from taking legal action against an individual or group that “declines to provide adoption services or foster care services based on a religious belief or exercise of religion,” raising concerns for some if Ducey is keeping his promise.
Arizona State Senator Sine Kerr, a Republican from Buckeye who sponsored the legislation, believes she is helping make sure the government “doesn't discriminate against faith-based foster care and adoption agencies, keeping children's needs first,” she said in a March 31 tweet.
But her track record with the LGBTQ community has some questioning if there are ulterior motives.
Kerr opposes allowing biological males who identify as transgender to play on female sports teams and opposes adding “sexual orientation,” “gender identity,” or “gender expression” to the protected classes in Arizona's nondiscrimination law.
Meanwhile, she supports protecting a parent's right to seek professional counseling for their minor child with same-sex attraction or gender identity issues to help them reach their desired outcome. She also supports protecting businesses from being required to provide services to LGBTQ people, according to a 2021 survey by Tucson-based LGBTQ advocacy group Stonewall Democrats of Arizona.
It’s hard for same-sex couples to get behind the new law amid a “crisis” in the foster care system.
Washington, D.C.-based LGBTQ political lobbying organization Human Rights Campaign tweeted two days before Ducey signed the bill that it "would impose barriers to LGBTQ families looking to foster or adopt."
This comes as the foster care system faces enormous strain in Arizona.
Arizona is home to the ninth-most children in foster care of any state, according to the Baltimore-based Annie E. Casey Foundation's data center. There are close to five children in foster care for every licensed foster family, according to the Arizona Department of Child Safety.
DCS also reports that about 3,000 licensed foster families are charged with caring for nearly 14,000 foster children in Arizona, a drop of more than 1,600 licensed families since 2017.
"We desperately need foster homes," said Bahney Dedolph, deputy director at the Arizona Council of Human Service Providers, a Phoenix-based legislative action group that advocates for foster families. "We cannot afford to turn away any family that is interested in becoming licensed to provide foster care."
Advocates fear the new law will dilute the pool of potential adoptive parents in the Grand Canyon State and make it harder to find homes for the huge number of displaced children.
“The idea that one should have the religious freedom to discriminate against other religions seems like a strange perversion,” Phoenix Rabbi Shmuly Yanklowitz told Phoenix New Times. “The most important thing is that children are put in the best homes, not the most Christian homes.”
Five percent of practicing Christians in the U.S. have adopted a child, according to Ventura, California-based research clearinghouse Barna Group, which states it has developed "one of the nation's most comprehensive databases of spiritual indicators." The think tank found Christians are more than twice as likely to adopt compared to the general American population.
However, My Jewish Learning, a New York City nonprofit, reported more than 5 percent of Jewish families have adopted a child. There is not a single Jewish licensed agency in Arizona.
Child welfare advocates also worry the new Arizona law transgresses the rights offered by the state to children to practice their own religion separately from their foster parents.
"It infringes on the child’s right to practice the faith of their choosing," Dedolph said. "It also infringes on the biological family’s right to raise their children in the way that they choose."
As of 2021, only one in five children in the foster care system is waiting to be adopted. The rest are expected to be reunited with their biological families, eventually.
For most foster children, the goal is to reunify the biological family within 12 months, said Molly Dunn, the director of child welfare and juvenile justice policy at Phoenix-based nonprofit Children's Action Alliance. It's typically designed to be a temporary arrangement as biological parents deal with incarceration, medical ailments, or other short-term complications.
"We should not be requiring children to learn and observe different religious tenets when the goal is to reunite them with those families," Dunn said. "The foster family should be honoring the desire of the biological family to give their child a certain religious, or non-religious, experience."
In Tennessee and South Carolina, adoptive parents have sued after being blocked from adopting based on religious grounds. And the U.S. Supreme Court rejected the idea of a blanket exemption for faith-based organizations to use religious criteria to discriminate against potential foster families.
But the effects of Arizona's legislation on adoptions may not be as dramatic as some warn.
In Arizona, 85 percent of adoptions are facilitated through a public, taxpayer-funded adoption agency, according to a 2012 report from the U.S. Department of Health and Human Services. The cabinet-level department has not tabulated public and private adoption numbers at the state-by-state level since then.
That percentage is higher than any other state.
But the vast majority are not rooted in conservative Christian values.
Of Arizona's 25 licensing agencies, just six are faith-based. Those six agencies accounted for a little more than 20 percent of adoptions in Arizona in 2019, according to numbers reported by those agencies when compared to the most recent total adoption numbers reported by the U.S. Department of Health and Human Services.
The Arizona Department of Child Safety does not report how many children are placed by faith-based agencies.
Arizona's 19 secular placement agencies are clustered in Phoenix and Tucson. Self-reported numbers show that, largely, these agencies place fewer children than their faith-based counterparts, which are often the only option for placement in rural parts of the state.
In Coconino County, for example, Arizona Baptist Children's Services is the only local agency offering regular adoption services.
The Center for Arizona Policy, a nonprofit conservative Christian lobbying group based in Phoenix that championed the recent legislation, says the new law will help overwhelmed foster parents in Arizona.
“At a time of critical shortage of eligible foster parents, Arizona will now be encouraging families of faith, not discouraging them from opening their homes to children in need,” the organization’s president, Cathi Herrod told New Times.
“By ensuring government does not discriminate against faith-based foster and adoption agencies, the new law expands the pool of qualified parents because they excel at recruiting adoptive and foster parents from their own faith communities, including special needs and hard-to-place children,” Herrod said.
She noted that non-Christian parents can avoid disappointment by first working with a secular placement agency.
The new law goes into effect on July 22.