This article is part of the Sacred-Public Partnerships series, published in collaboration with Sacred Sector, an initiative of the Center for Public Justice. The series explores the ways in which faith-based organizations – the sacred sector – and government partner for good. Sacred-Public Partnerships focuses specifically on the intersection of the sacred sector, religious freedom, and government-administered social safety net programs and explores why partnership between government and the sacred sector is essential to the success of social services in the United States.
BY CALEB ACKER
The home should be a place of stability, security, and where family bonds are formed. Families are foundational and are where children grow, play, and develop into young adults. However, this is not the reality for many children in the United States.
In 2017, almost half a million children were in the foster care system, with 123,000 children waiting for adoption. Every year, tens of thousands more children enter the system than exit, and many of the children exiting are aging out. “Aging out” means that a child in foster care, rather than joining a permanent family, reaches 18 years of age and is on their own, without family or even the support of the foster care system. These young adults that age out of the system, often lacking official government documents and institutional structures, experience homelessness and unemployment at high rates.
The foster care system — and the struggles of the children therein — illustrates the vital need for children to be adopted into forever homes. But, not everyone in our nation agrees on how adoption should proceed in order to achieve the flourishing of the children. Nor does everyone agree on what level of involvement government should have or how the sacred sector of adoption agencies should partner with the government.
Proponents of LGBT rights and nondiscrimination want to ensure both that LGBT couples have the freedom to adopt and that LGBT youth in the foster care system — a disproportionately represented population — have the opportunity to be placed in LGBT homes. On the other hand, faith-based adoption agencies want to ensure that they can continue to place children in homes that are in accordance with their own beliefs, whether that means placing Jewish children with Jewish parents or placing children in a traditional home with a mother and father.
In the current political climate and adoption system, these two sides seem on the surface to be utterly irreconcilable. However, a better understanding of both government and faith-based institutions can provide a framework for compromise and discourse, while a pluralist system for public adoption can promote justice. Government and faith-based adoption agencies can and must partner together in order to strengthen the family, prevent poverty, uphold public justice, and promote the common welfare. A pluralist system of adoption can provide all with the ability to adopt and be adopted in accordance with their own particular beliefs and can give the most children good homes.
THE CURRENT CONTEXT
Because the government is concerned with overseeing the safe placement of vulnerable children, only organizations contracted with the government are allowed to engage in public adoption. Public adoption involves the government taking custody of at-risk children and placing them in the foster care system, the end goal of which is reunification with family, when possible, or permanent adoption with secure families.
Over the past year, state and local governments have taken steps to bar faith-based organizations from engaging in public adoption. Philadelphia suspended its contract with Catholic Social Services because the adoption agency refused to place children with same-sex couples, as they believed that doing so would violate their deeply-held religious beliefs. After a district judge upheld the city’s decision, the plaintiffs appealed to the Third Circuit Court of Appeals, which denied Catholic Social Service’s request to suspend Philadelphia’s policy against the agency. The agency has since appealed to the Supreme Court for relief. Meanwhile, on March 22, 2019, the Michigan attorney general announced a settlement that disallows religious exemptions for faith-based adoption agencies that do not place children with same-sex couples. This means that Catholic Charities and Bethany Christian Services, which handle about a quarter of Michigan’s adoptions, will be forced either to abandon their closely-held beliefs or abandon the children they are committed to serving.
Government is mandated to uphold public justice by legislating, enforcing and adjudicating laws for the welfare of all citizens within its jurisdiction. Therefore, government does have a financial role in helping the vulnerable. The primary way that government should address poverty is prevention. Adoption helps prevent poverty by giving vulnerable children the financial and social security of family. Per the Center for Public Justice’s Guideline on Family: “The family is the most basic of human institutions. Government should recognize and protect the family as an essential expression of its responsibility to uphold a just society.” Adoption uses the law to help create families; the most fundamental of the social institutions. As God has good purposes both for government and for family, it follows that justice and the common good can be pursued through partnership between government and adoption agencies.
Partnership is both necessary and effective in this case. While government has the responsibility to provide financial assistance to promote social welfare, faith-based organizations are proximate to the needs of children and families in their communities. Adoption agencies often specialize in serving specific communities, such as Catholic families, older couples, Native Americans, Muslims, Orthodox Jews, and more. Mission-driven adoption agencies, dedicated to placing children where those children will thrive, must be free to provide their unique services without facing discrimination from government.
A WAY FORWARD
A pluralist legal framework utilizing indirect government funding is a powerful way to protect the belief systems of faith-based adoption agencies while ensuring that they compete on an even financial playing field with other adoption agencies. The difference between direct and indirect funding is significant because of what the different types of funding mean for an adoption agency. In the current system within which Michigan and Pennsylvania adoption agencies are operating, government nondiscrimination requirements are enforced through restrictions attached to the direct funding of the agencies by the government. In the absence of religious exemptions, faith-based agencies that receive money directly from the government are required to comply with restrictions by, for example, placing a child with a same-sex couple. If these groups do not comply, they lose the government contracts. As stated above, in the public adoption system, agencies without a government contract cannot engage in public adoption at all. In this system, only the majority’s social views are accepted, while those who hold minority views fight for exemptions simply to be able to continue serving.
The legal framework that we propose is radically different from the current system. A pluralist system uses indirect funding, where the government, instead of contracting with specific adoption agencies, authorizes clients to receive services from any of the adoption agencies in a state. This can be accomplished by awarding certificates (akin to vouchers) to beneficiaries or by having the government pay the provider after it completes a specific service for a beneficiary. This ensures that all people have access to a welcoming agency to help them foster or adopt while also protecting those agencies’ right to live out their institutional beliefs. The government’s indirect funding of public adoption can create a flourishing adoption system in a diverse society. The government can also fulfill its own responsibilities by providing information and qualification requirements that uphold the dignity of all involved in the adoption process and the safety of the children.
Such a system would ameliorate the problems in Michigan and Pennsylvania. LGBT couples looking to adopt would have access to information and indirect funding from the government to utilize the services of adoption agencies that are willing to place children with them. Faith-based adoption agencies would be able to live out their institutional beliefs and place children with families as they see fit, assisted by indirect funding. Instead of being pitted against one another, a pluralist funding structure fosters an equitable playing field for all to be free to serve and be served.
We are not doomed to a divisiveness that detracts from the welfare of the most vulnerable in our society. We must pursue discourse on all sides of the adoption debate that promotes a more positive view of government and faith-based adoption agencies. A pluralist adoption system is not compromise for the sake of compromise, but for the sake of protecting sincerely held beliefs and, ultimately, for the sake of vulnerable children.
Caleb Acker is a law student at Notre Dame.
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