The Case for Creative Pluralism in Adoption and Foster Care

abstract. Religious and secular beliefs about marriage and sexuality are often in tension. Partisans on both sides commonly insist that public policy entirely reflect their views, which leads to perpetual conflict. This Essay advocates for pluralistic solutions to such conflicts, using an example from the context of adoption and foster care.

Introduction

Can we accommodate divergent beliefs about marriage, family, gender, and sexuality? That question has defined America’s culture war for the last quarter century, as LGBTQ-rights advocates have clashed with religious traditionalists and their religious-liberty allies. Professor Douglas Laycock noted over a decade ago that “[e]ach side sees the other as a genuine threat to its values and to its own liberty.”1 Those views have only intensified since. Many in each camp believe that their opponents are fundamentally mistaken about basic elements of human life.

Those metaphysical differences are not going away, and neither side has the means to impose a lasting political or legal victory on the other. Today, it is clearer than ever that we need a “negotiated truce”2 that can be wrought only by a creative, gritty pluralism that reasonably protects both LGBTQ civil rights and longstanding religious liberties. Resolving this conflict has important implications for family law in particular, especially in the area of adoption and foster care. Further delay in reaching a sustainable settlement in that context will only harm vulnerable children.

The obvious answer to my opening question, given America’s commitment to both freedom and pluralism, should be yes—even, “of course!” But with the tides of elite and public opinion now running in their favor, many ideological progressives do not find that answer so obvious.3 As once occurred with pleas for LGBTQ rights, current pleas for understanding, toleration, and accommodation of traditional religious beliefs and practices often fall on skeptical ears.4 But just as the denial and demonization of legitimate claims for LGBTQ rights has led to bitterness and conflict, so too will the refusal to reasonably accommodate the beliefs and practices of those in the conservative faith community. Indeed, the slandering of longstanding religious rights as a “license to discriminate”5 is no more legitimate than the old slandering of LGBTQ freedoms as a license to engage in perversion.6 The impulse to legally enforce deeply held religious beliefs on matters of sexuality and gender identity is strong, but so is the temptation to enforce their secular opposites.7

Often missing from these debates is the humane recognition that good, thoughtful people in a free society can and do understand and experience matters of sexuality and gender identity differently and, in doing so, come to clashing moral conclusions.8 That recognition, along with a measure of humility, is the starting point for exploring reasonable, pluralistic solutions to the present standoff. To be clear, in advocating for pluralistic models as the only sensible way forward, I do not mean to suggest moral relativism or that either side should cease advocating for its viewpoints. We need not affirm that all ideas are created equal to afford equal dignity and respect to the diverse individuals who hold them. Meaningful accommodation of differences is not necessarily affirmation. The practical pluralism I espouse seeks a workable, respectful, good-enough peace, not perfection or assent to the other side’s ideology or theology. If, as argued below, feuding faith communities can peacefully, even lovingly, coexist despite profound theological differences that once led to violent conflicts, then so can feuding culture-war factions. That is my hope. And with the Supreme Court's evident support for pluralistic solutions, the public policy choice is increasingly between LGBTQ rights with statutory exemptions negotiated by legislators and interest groups in a spirit of compromise and (assuming they can be passed) LGBTQ rights with constitutional exemptions imposed by courts after bitter litigation.

This Essay proceeds as follows. Part I provides background on the Supreme Court’s strong support for both LGBTQ equality and religious liberty as part of an emerging jurisprudence of pluralism. Part II makes a normative case for embracing creative pluralism, drawing on the history of religious conflict in the United States. Finally, Part III proposes a framework for developing pluralistic policy solutions that distinguishes between private, public, and hybrid spheres. Further, it details one such solution in the adoption and foster-care space: The child-welfare provisions in the proposed federal Fairness for All Act, which represents a good-faith legislative effort to respect the interests of both LGBTQ and faith communities while advancing the government’s overriding interest in meeting the needs of vulnerable children.

I. the supreme court’s strong support for pluralism

Even as it has advanced LGBTQ rights, the Supreme Court has repeatedly underscored the importance of religious freedom in our pluralistic republic. And it has strongly signaled that it will not countenance the use of governmental power to impose a particular view of marriage or sexuality.

Consider the Court’s decision in Obergefell v. Hodges.9 There, the Court held that traditional religious and ideological beliefs about the sanctity of heterosexual marriage could not be enshrined in the law to the exclusion of same-sex couples.10 “It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society,” the Court reasoned.11 “Same-sex couples, too, may aspire to the transcendent purposes of marriage and seek fulfillment in its highest meaning.”12 Unlike the Court’s holding over fifty years ago in Loving v. Virginia, which struck down an antimiscegenation law because it attempted to enforce invidious beliefs about “White Supremacy,”13 the Obergefell majority was at pains to emphasize that both the belief in traditional marriage and those who hold it are honorable. “Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.”14 The Court explained that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”15 The Court would never say that about beliefs or practices it deemed invidious. The majority then concluded its primary analysis with assurances that it would protect religious liberties:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.16

The Court did not specify what exactly “proper protection” for religious organizations and persons might entail, explicitly referencing only advocacy and teaching. Chief Justice Roberts, in his withering dissent, called out the weakness of the majority’s assurance: “The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage. . . . The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”17 But the majority did not need to go further. Its recognition of the noninvidious nature of traditional beliefs about marriage—indeed, their “decent and honorable”18 pedigree—surely constituted recognition that such beliefs are protected not only while being advocated privately or in the public square, but also in their adherents’ lived reality through religious practices. In Christian Legal Society v. Martinez,19 the Supreme Court rejected the distinction between “status and conduct” in the context of sexual identity.20 Likewise, there is no coherent basis for a sharp distinction between the religious beliefs that constitute an individual’s or faith community’s identity and the religious practices that naturally flow from that identity and give it incarnate reality. True, beliefs may enjoy absolute protection while acts do not.21 But nothing in Obergefell suggests that the Court will allow the effective suppression of religious beliefs about marriage through the suppression of venerable and longstanding faith-based practices.

No Supreme Court decision since Obergefell calls this reading into serious question. Quite the contrary. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,22 the Court struck down the enforcement of a nondiscrimination law against a Christian cake-shop owner—the now-famous Jack Phillips—whose sincere religious beliefs prevented him from creating a custom cake for a same-sex marriage ceremony.23 In his 7-2 majority opinion, Justice Kennedy noted the need to properly reconcile the tension between LGBTQ equality and First Amendment rights:

The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the authority of a State and its governmental entities to protect the rights and dignity of gay persons who are, or wish to be, married but who face discrimination when they seek goods or services. The second is the right of all persons to exercise fundamental freedoms under the First Amendment . . . .24

Justice Kennedy also explained that “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”25

The Court’s holding in favor of Mr. Phillips ultimately rested on narrow grounds of objective inconsistency in the application of the nondiscrimination law and clear signs of subjective antireligious animus.26 Had members of the Colorado Civil Rights Commission hidden their contempt for his religious beliefs, the Court’s analysis might have been more difficult.27 But the fact remains that the Court overwhelmingly refused to allow the government to punish someone based on their religious beliefs and closely related practices regarding marriage. By a large majority, the Court noted the need to find a “proper reconciliation” of competing legal “principles,” one rooted in the state’s power to protect LGBTQ persons and the other rooted in “fundamental freedoms under the First Amendment.”28 With same-sex couples able to purchase wedding cakes at numerous other locations from supportive bakers—and with Mr. Phillips being the vulnerable religious minority in this instance—the government’s need to infringe his fundamental freedoms to advance the dignity interests of LGBTQ people was attenuated.29 Professors William Eskridge and Robin Fretwell Wilson have commented that “[a]lthough staking out little new ground, Masterpiece stands as a call for greater respect for one another, a thicker pluralism where all can be true to who they are. . . . In many ways, Kennedy [in Masterpiece]sketches the outer boundaries of an acceptable legislative compromise.”30

Analogous pluralism concerns were evident in Bostock v. Clayton County,31 where the Court held that Title VII’s prohibition on sex discrimination in employment includes a prohibition on sexual-orientation and gender-identity discrimination.32 By any measure, this was an enormous victory with far-reaching effects for LGBTQ persons. Yet, although the facts of the case did not implicate religious-liberty concerns, the Court went out of its way to acknowledge the “fear that complying with Title VII’s requirement . . . may require some employers to violate their religious convictions.”33 Seeking to assuage such fears with strong assurances of pluralism, the Court once again confirmed its commitment to the free exercise of religion: “We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society.”34 The Court then went on to list ways that the law protects religious interests in this area: Title VII’s “express statutory exception for religious organizations”;35 the First Amendment’s bar on “the application of employment-discrimination laws to claims concerning the employment relationship between a religious institution and its ministers”;36 and the Religious Freedom Restoration Act’s (RFRA) operation “as a kind of super statute” mandating strict scrutiny for all federal laws that substantially burden religious
exercise.37

While none of the employers in Bostock argued that “compliance with Title VII [would] infringe their own religious liberties in any way,” the Court noted that “other employers in other cases [could] raise free-exercise arguments that merit careful consideration.”38 In so doing, the Court appears to have issued a warning—delivered in an opinion by Justice Gorsuch, whose vigorous support for religious freedom is well known,39 and no doubt endorsed by the dissenting Justices—that religious interests will not simply be trampled by invocations of LGBTQ rights, for that would violate the religious liberty “guarantee [that] lies at the heart of our pluralistic society.”40

With Justice Gorsuch seemingly more attuned to the concerns of religious dissenters than retired Justice Kennedy, and with Justice Barrett likely more amenable to religious-liberty defenses than the late Justice Ginsburg,41 the Court’s assurances of pluralism in Obergefell are more salient now than ever. Indeed, the current Supreme Court is more likely to sympathize with the serious religious-liberty concerns expressed by the Obergefell dissenters than the more cautious views of the majority, though it is unlikely that the Court would ever overturn the holding itself.

Some have characterized the Court’s approach to addressing conflicts between religious and LGBTQ rights as one of “live and let live,” especially when it comes to religious beliefs about marriage.42 If that is indeed what the Court is striving toward, how does that work as a practical matter in sensitive contexts like adoption and foster care, where private religious agencies’ beliefs about marriage directly conflict with government prohibitions on discrimination based on sexual orientation and gender identity?

The Supreme Court provided a partial answer in Fulton v. City of Philadelphia.43 In Fulton,the Court considered whether the city of Philadelphia violated the First Amendment when it ended the centuries-long work of Catholic Social Services (CSS) to find foster parents for vulnerable children. The case arose from a newspaper report. When a reporter asked whether the organization would place a foster child with a same-sex couple, a CSS leader explained that Catholic teachings would prevent him from doing so. Although no same-sex couple had ever been turned away, and despite CSS’s willingness to direct such a “couple to one of the more than 20 other agencies in the City” that currently work with same-sex couples,44 the Mayor and City Council of Philadelphia condemned CSS as discriminatory and terminated its contract to provide foster-care services. The Third Circuit upheld the City’s actions, rejecting CSS’s First Amendment claims.45

The Supreme Court unanimously reversed. Noting CSS’s long and continuous history of benevolent service to needy children “while holding to [its] beliefs” and related policies that “marriage is a sacred bond between a man and a woman,”46 the Court held that the City’s actions violated the Free Exercise Clause. The Court first deferred to CSS’s assertion that certification of same-sex couples as foster parents would constitute an endorsement of their relationships, rejecting the City’s contrary assertion. “As an initial matter,” the Court reasoned, “it is plain that the City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.”47 The Court then turned to whether the City’s nondiscrimination requirement was religiously neutral and generally applicable and thus entitled to deferential treatment under Employment Division, Department of Human Resources of Oregon v. Smith.48 The majority rejected the City’s argument that while acting in its managerial role, the government “should enjoy greater leeway under the Free Exercise Clause when setting rules for contractors than when regulating the general public.”49 Instead, the Court found that the City’s policies were not generally applicable under Smith because of “a system of individual exemptions, made available . . . at the ‘sole discretion’ of” City officials.50 The City’s actions were thus subject to “the strictest scrutiny.”51

Applying that standard, the Court made quick work of the City’s asserted compelling interests. “The question,” the Court instructed, drawing from its jurisprudence under RFRA, “is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.”52 It did not. The Court noted that excluding CSS, which works to bring more foster families into the system, would not advance the City’s asserted interest in maximizing the number of foster families.53 That left the City’s interest in the principle of LGBTQ nondiscrimination to ensure “equal treatment of prospective foster parents and foster children.”54 The Court acknowledged “that this interest is a weighty one, for ‘[o]ur society has come to the recognition that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth.’”55 But although never actually used, the existence “of a system of exceptions under the contract undermines the City’s contention that its nondiscrimination policies can brook no departures.”56 “The City offers no compelling reason why it has a particular interest in denying an exception to CSS while making them available to others.”57 The City’s actions, therefore, failed strict scrutiny.

The decision in Fulton can be read narrowly, to be sure. After all, Justice Alito, concurring in the judgment and joined by Justices Thomas and Gorsuch, suggested that all the City had to do was eliminate the provision giving officials discretion to make exceptions to the nondiscrimination rule and it could evade the entire holding.58 But with Justices Thomas, Alito, and Gorsuch ready to overrule Smith immediately and resurrect strict scrutiny in all cases,59 and with at least three others deeply concerned about Smith’s viability (though unsure of its replacement),60 those seeking an easy end run around Fulton are likely to be disappointed. The Court’s concluding statements belie that hope:

As Philadelphia acknowledges, CSS has “long been a point of light in the City’s foster-care system.” . . . CSS seeks only an accommodation that will allow it to continue serving the children of Philadelphia in a manner consistent with its religious beliefs; it does not seek to impose those beliefs on anyone else. The refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.61

Once again, the Court’s language was not that of regretful tolerance of noxious beliefs, speech, or conduct as the price of upholding First Amendment values, but of respect and accommodation. In praising CSS and its worthy efforts, the Court essentially rejected the notion that CSS’s policy materially harms anyone.

The jurisprudential line starting from Obergefell’s assurances of dignity for both sides of the marriage debate and concluding in Fulton is clear. When it comes to religious beliefs and venerable practices related to marriage, the Court appears very unlikely to allow one side of the debate to use the power of government to anathematize the other by “treat[ing them] as social outcasts or as inferior in dignity and worth.”62 The City in Fulton sought to make CSS an outcastand the Court unanimously said no. At least in this fraught arena, a gritty but respectful pluralism will be the Court’s most probable approach.

II. the need for creative pluralism

The Supreme Court’s endorsement of pluralism as an important aspect of its LGBTQ rights decisions underscores two realities. First, conflicts over beliefs about marriage, family, gender, and sexuality are often deep, irreconcilable, and enduring. They are not going away.63 Second, while the Supreme Court cannot rewrite every law to reconcile these conflicts, it is unlikely to allow one side of this religious/ideological conflict to use the force of law to conclusively impose its will on the other.

The first point seems obvious. Secular accounts of sexual orientation and gender identity conceive of those traits as fundamental aspects of individual identity and autonomy that the law must vigorously protect.64 In this view, to permit discrimination against LGBTQ persons in important areas of our shared public life is to countenance harm against a vulnerable minority. By contrast, many faith traditions affirm that gender identity is a divinely ordained attribute, and that sexual activity is moral only within the bonds of marriage between a husband and wife.65 Few conservative faith communities now seek to impose those views through the law. After Obergefell, the battle over full legal recognition of same-sex unions appears to be over. But conservative faith communities do insist that the law respect their longstanding right both to hold and practice their dissenting religious beliefs. They further insist on not being stigmatized as irrational bigots, excluded from public life, stripped of their jobs, or denied the ability to participate with other groups in performing vital charitable works as they have since before this nation was founded.66

So there is work to do. Fortunately, finding ways to live in respectful peace despite profound differences is the unique genius of America. For centuries, Americans have sought to balance the twin imperatives of maintaining civic order and affording freedom to individuals and groups with diverse belief systems and identities. We have not always gotten the balance right, but we have not given up either. In this effort, it has been essential to recognize that protections for personal identity and freedom must include, but also go beyond, the lone individual. Securing the right of individuals to live out their private and personal lives is critical, but so is securing the freedom of individuals to gather and associate in communities of meaning and belonging.67 Notably, the fight for legal recognition of same-sex unions was not merely an individualist movement. It was also a demand for legal and social respect for diverse families and for the right to participate equally in an institution of profound social meaning.68 Similarly, the fight to preserve religious freedom in America has not merely been a struggle for the individual’s right to quietly pray at home or in a chapel or to express a religious opinion on the street corner. It has also been a struggle to maintain—in the face of powerful social, political, economic, and legal pressures—the freedom and autonomy of faith communities that are essential to the identity formation and freedom of millions of Americans. No respectful peace is possible without protection for the unique place and role of America’s faith communities. “[R]eligious liberty has little substance if those who join together in churches are not free to manage their ecclesiastical affairs as they choose.”69

Justice Holmes once said that “a page of history is worth a volume of logic.”70 What is at issue in the culture wars over traditional religious beliefs and LGBTQ interests is new in detail, but not new in nature. Our history of learning to respect religious diversity is analogous and instructive. The United States has long sought to accommodate diverse faith communities with fundamentally different religious beliefs—communities that for centuries had intractable and even violent conflicts. Religious clashes of various sorts—Episcopalian v. Baptist, Protestant v. Catholic, Christian v. Jew—were common and often intense in early American history.71 During one such conflict in 1838, the Governor of Missouri issued a literal extermination order against members of The Church of Jesus Christ of Latter-day Saints: They were to be driven out of the state by any means required or, if necessary, exterminated.72

From those conflicts and our imperfect but persistent efforts to accommodate religious diversity, a deep consensus emerged that although irreconcilable theological beliefs and practices may be grounds for intense disagreement and debate, they are not a justification for denying basic rights. Hence, the first clause of the First Amendment forbids Congress from establishing a national religion or church.73 The government cannot create religious tests or deny equal protection of the law based on religious belief or affiliation.74 Secular employers cannot discriminate against employees based on religion, while religious employers retain the right to use religious hiring criteria.75 Individuals have the right to join any faith community that will have them or to start their own.76 Religious groups have the freedom to define themselves and their beliefs, including to determine who qualifies as a believer and thereby a member of the
group.77 Religious groups can also hire and fire their own religious officials for essentially any reason.78 And faith communities cannot be barred from building houses of worship on their property absent important reasons,79 or excluded from participating in public programs on equal terms with other groups.80

These and other legal protections for religious freedom secure not only the right to hold and perpetuate diverse religious beliefs individually and in communities, but also the conditions for a vibrant religious pluralism. People of radically different faiths now live together in harmony. Formerly unthinkable friendships across religious lines are now common and deep—not because people stopped caring profoundly about religious differences, but because they have agreed to disagree on such matters and to find common ground on others. Religious pluralism is not just an American article of faith. It is an article of peace.81

There are important lessons in this history for the effort to find solutions to our perpetual conflicts over diverse conceptions of marriage, family, gender, and sexuality. One lesson is that the present quest to legally enforce ideological domination is futile and destructive. Total dominance for either side is impossible. While progressive beliefs about sexuality and gender identity are certainly ascendant, tens of millions of Americans still understand these matters in terms of traditional religious beliefs that define their identities and lives. Those people and beliefs are not going to disappear, the hopes of some advocates notwithstanding. And, as argued above, the Supreme Court has strongly signaled that it will not allow one side to crush the other. If true, then a creative pluralism is the only feasible way to establish peace between seemingly warring religious and LGBTQ factions.

III. the architecture of creative pluralism

The architecture of pluralism is not complex, but it does require an understanding that different spaces involve different values and thus require different legal approaches. I believe there are at least three such spaces.82 First, in public spaces, LGBTQ nondiscrimination norms should generally prevail. These are spaces that history and tradition consider open and available to everyone, including government institutions and public accommodations.83 Targeted exceptions in cases of true religious hardship may be necessary in unique situations like Masterpiece, but they should be narrow and relatively rare in a genuinely public space. Second, in private and sacred spaces, which are zones of family, faith, and individual-identity formation, personal and religious autonomy should generally prevail. Families, friendships, houses of worship, religious schools, religious charities, and other religious organizations are examples.84 In those spaces, nondiscrimination norms should generally give way to personal and religious-autonomy norms. Third, in hybrid spaces—shared spaces where public interests intersect with private or sacred interests—both nondiscrimination norms and autonomy norms should have legitimate but not absolute sway.85 This hybrid zone requires prudent line drawing to secure fair and durable solutions.

The particularly sensitive context of adoption and foster care illustrates how a pluralistic approach to hybrid spaces might work in practice. Many religious adoption and foster-care agencies should be understood as hybrid (or shared) spaces. They are not truly public and thus should not be subject to broad and invasive regulation—as religious organizations, they are entitled to substantial autonomy. But because they willingly receive public funding for the specific purpose of serving vulnerable children and the families adopting and fostering them, and because the state has a strong interest in securing the safety and best interests of vulnerable children, they are not strictly private spaces either.

Because this is shared space implicating both sacred and secular values, sweeping demands for ideologically pure outcomes should be avoided. In these conflict-laden zones, simplistic invocations of “public money, public values” fail to capture a deeper reality.86 The tenor and holding of the Supreme Court’s decision in Fulton accurately suggest that far more is at issue, and that the Court will not allow blanket defunding of religious adoption agencies as the penalty for refusing to abandon deeply held religious beliefs.

American law has never demanded wholesale abandonment of constitutional rights as the price of receiving public money87For example, the government cannot demand (and never has) that a church become a place of public accommodation in exchange for accepting security grants to protect worshippers from violent attacks. Nor may it demand the abandonment of religious doctrines it dislikes or the hiring of unwanted clergy as the price of public money. Respect for religious freedom and autonomy is itself a preeminent public value—the first right in the First Amendment.88 That said, the notion that public money cannot come with any public strings whatsoever is untenable. No principle of law entitles a religious organization to receive public money unconditionally.89The work of religious adoption and foster-care agencies is no exception. Absolutist assertions of nondiscrimination or religious freedom will not lead to reasonable settlements and should thus be avoided.

Instead, in seeking pluralistic solutions to conflicts, both sides should focus on accommodating three primary dignitary and liberty interests in the foster-care and adoption spaces. First and foremost are the interests of vulnerable children and the imperative need for as many qualified adoption and foster agencies as feasible to serve as many children as possible. The humanitarian needs in this context are compelling, indeed wrenching.90 Second, prospective LGBTQ parents—like all others—have a substantial interest in a fair opportunity to adopt or foster children and to receive the benefits of government aid appropriated for that purpose. Third, religious adoption and foster-care agencies have a substantial interest in continuing to help vulnerable children find adoptive and foster parents in a manner consistent with their sincere religious beliefs.

All these interests can be vindicated—not perfectly or absolutely, but substantially and fairly—through a nuanced pluralist approach. The federal Fairness for All Act (FFA Act), drafted by lawyers and advocates for both LGBTQ rights groups and conservative faith communities, is one good-faith attempt at such an approach and a possible model.91 With respect to adoption and foster care, the FFA Act would (1) prioritize the needs of society’s vulnerable children by maximizing the likelihood that they will find suitable and loving homes; (2) protect the right of qualified LGBTQ couples to claim federal financial assistance in adopting or fostering children; and (3) safeguard the right of religious adoption agencies to be faithful to their own religious beliefs and standards concerning traditional marriage.92

The FFA Act responds to the “national deficit in the number of adoptive and foster parents and the private agencies qualified to serve these children.”93 Negotiators94 decided that vulnerable children would fare better if families and private agencies of all types continued to contribute to the adoption and foster-care systems. To that end, the bill expresses a national policy that “guarantee[s] the equal treatment of qualified families seeking to offer foster care or adoption and an equal respect for the diversity of private agencies, including religious agencies, that provide adoption and foster care services.”95 Its overarching goal is to serve children by encouraging diversity among adoption and foster-care providers. As Representative Christ Stewart, the bill’s sponsor, has explained, “[c]losing down private agencies because of their religious standards reduces the number of agencies providing child welfare services.”96 Likewise, “[e]xcluding same-sex couples as adoptive or foster-care parents reduces the number of available homes for needy children.”97 Dogmatic approaches, in other words, ultimately harm vulnerable children. The FFA Act “seeks to protect children by avoiding these conflicts wherever possible”98 by expanding the pool of qualified families who desire to adopt and foster children.

The FFA Act’s approach turns on the essential distinction between direct and indirect funding. Public funding that flows directly from the federal government to the states and then to private agencies comes with significant conditions, including LGBTQ-nondiscrimination requirements.99 But public funding that flows to a private agency as the result of personal choices by prospective adoptive or foster parents justifiably carries fewer restrictions because of the intervening choices of individual beneficiaries. This approach, which has been refined over federal administrations of both parties, is known as “Charitable Choice” and has enjoyed success in other important contexts.100 The FFA Act’s indirect-funding alternative provides religious agencies with far greater freedom and flexibility to serve children and families consistent with the dictates of their respective faiths.

To operationalize the direct/indirect funding distinction, the FFA Act creates a new funding program.101 Qualified families and individuals would receive a certificate entitling them to certain adoption and foster-care services.102 All states receiving federal funding for adoption and foster care would be required to participate in the certificate program, and no state could deny a certificate because of a couple’s LGBTQ status.103 That certificate could then be used at whatever adoption and foster-care agency the couple chooses—thereby promoting greater diversity in private agencies, including those specializing in serving LGBTQ couples—with only three
exceptions.104

First, a private adoption or foster-care agency could decline to accept a certificate, thereby avoiding the requirements that come with accepting federal money.105 But if it did so, the agency would have to provide a reasonable referral to another adoption agency in the area that would accept the certificate and perform the federally subsidized services.106 The state would be required to ensure that there is at least one qualified provider of adoption or foster-care placement services for every qualified individual seeking such services.107 This would ensure that everyone is ultimately served by an agency that is suited to their needs, but that no agency would be forced to act against its religious beliefs. It is likely that private agencies specializing in serving the unique needs of LGBTQ parents would quickly arise under this regime. Second, if a religious agency accepted a certificate, but later discovered that performing adoption or foster-care services would violate its religious beliefs, that agency could “facilitate a mutually voluntary referral” so long as it did not “unreasonably delay or disrupt the adoption or foster care evaluation and placement process.”108 Third, any agency could terminate a relationship with a certificate holder “who [made] a material misrepresentation of fact that the prospective parent knew or should have known that the agency specifically requested.”109

Additional provisions would safeguard the integrity of religious agencies. State and local governments could not deny them the opportunity to participate in the certificate program.110 Agencies would have the right to reasonable payment for services performed in reliance on a certificate.111 And no state could suspend or deny a religiously affiliated adoption or foster-care agency its license or certification because of its religious teachings or practices.112

Through these and other creative means, the FFA Act would use a pluralism model to advance the government’s compelling interest in expanding the number of families who could adopt or foster children, while also reasonably reconciling equal treatment for LGBTQ couples with the free-exercise rights of religious agencies, both of which are essential to securing adoptive and foster parents for needy children.

IV. religious accommodation and its discontents

Not everyone believes in pluralism or accommodating dissenting religious views. In her bracing essay for this Collection, Louise Melling of the American Civil Liberties Union (ACLU) frankly advocates for government to impose a secular orthodoxy in matters of marriage, family, gender and sexuality.113 She argues against any accommodation of traditional religious beliefs and practices—even those at the very heart of a religious organization—when they conflict with the enforcement of progressive sexual and gender norms through nondiscrimination, contraception, and abortion laws.

She is explicit about the reasons underlying her view: The culture around the traditional husband-wife-children family undergirds a dangerous “trope,” a “Leave it to Beaver mythical archetype” steeped in sexual oppression and racism.114 As diverse family forms have acquired legal protection and social acceptance despite that trope, Melling sees grave peril in the ongoing belief of many faith communities “that children need both a mother and father; [and] that men and women on average bring different gifts to the parenting enterprise.”115 These allegedly pernicious beliefs and related religious practices induce religious institutions not to recognize same-sex marriage, religious schools to insist that teachers comply with their traditional religious teachings about marriage and sexuality, religious wedding vendors to resist catering same-sex marriages, and religious adoption agencies to object to placing children with same-sex couples.116 They also generate opposition to contraception and abortion mandates.117

Melling rejects religious exemptions because they accommodate opposition to the changes in family norms and law of the last fifty years. It would be one thing, she argues, if all religious exemptions did was “create a quiet enclave to which some people may retreat to live according to religious values no longer enshrined in the law”118—presumably out of sight and without place or voice in our democracy. The problem, in her view, is that the goal of religious exemptions is ultimately political: “It is to contest the very change in family norms that the laws and policies being challenged aim to advance, and ultimately undermine and overturn the gains of the last half century for diverse family formulations.”119 Exemptions are therefore problematic, according to Melling, because they “keep alive a very public debate about the legitimacy of the new norms and the morality of those they protect.”120 In her view, they are an illegitimate expression of dissent from the new orthodoxy.

It follows that the freedom to hold, practice, and perhaps even “debate” traditional religious beliefs about marriage, family, gender, and sexuality constitutes an existential threat to those who hold and practice different beliefs. That, in Melling’s view, creates a moral and legal imperative to suppress—to the extent reasonably possible through expansive, exception-less nondiscrimination and contraception/abortion-access laws—those who religiously dissent from these new norms.

Much could be written in response to Melling’s forceful argument, but in this limited context, five points must suffice.

First, Melling deserves credit for honesty and clarity. She confirms the fears of religious traditionalists that for groups like the ACLU and their academic supporters, the point of expansive LGBTQ nondiscrimination rights is not “live and let live” pluralism, but rather the enforcement of new family norms and the suppression of traditional ones. Traditionalists once used the law to impose their beliefs on sexual minorities. Now that social and political winds have changed, Melling would argue, progressive advocates should likewise use state power to impose their beliefs on religious traditionalists. Turnabout is fair play. In taking this harsh line, Melling opens further the growing rift with LGBT advocates who support pluralist approaches. She rightly notes that Professors William Eskridge and Andrew Koppelman—two of the intellectual godfathers of the marriage-equality movement whose arguments also prevailed in the seminal Bostock decision121—support approaches to LGBTQ rights that include religious exemptions.122

Second, the factual premise of Melling’s argument is false. There is no traditionalist cabal working to take the law or culture back to the dark days of coverture. There is no effort to preclude women from working in any profession, to force them to be mothers and homemakers (with or without men), or to make ordinary contraception unlawful. Who would vote for such laws? Anyone? Pinprick objections to contraception mandates that some believe include abortifacients (including drugs like Plan B) are hardly a threat to new family norms. Hobby Lobby objected to just four of twenty contraceptive drugs in its Supreme Court battle,123 and in the years since the Court’s narrow holding in Hobby Lobby, there has been no corporate stampede to follow suit. Granting a contraception-coverage exemption to an order of celibate Catholic nuns who care for the elderly poor124 is hardly a threat to progressive family norms.125 Similarly, overwhelming majorities of Americans favor the right of LGBTQ persons to have a job and a place to live and to enjoy public services like everyone
else.126 And it is very unlikely that the decision in Obergefell faces serious risk, despite its contested reasoning;127 in any event, public opinion now strongly supports same-sex marriage.128 And is there really a need to legally persecute the exceedingly rare and often-vilified cake baker or florist who religiously objects to participating in a same-sex wedding while happily serving LGBTQ customers in many other ways?129 Does this truly present a material threat to the fabric of civil-rights laws or new family norms? Outsized fears of irredentist cultural forces cannot justify authoritarian approaches to antidiscrimination, reproductive, and family law.

Notably, many of the cases Melling cites are not from the public realm.130 The LGBTQ teachers at risk of losing their jobs are not working at the local public high school, as Melling rightly notes.131 They are working at religious schools with sincerely held religious doctrines about marriage and sexuality. Religious schools have an imperative and stewardship to teach and model their religious beliefs. No one who works for a Catholic or Orthodox Jewish school—much less at a religious organization like a church or synagogue—should be surprised that they are required to live the faith’s sexual ethic, and the law has no business interfering in such religious decisions. Likewise, no one should be surprised that CSS provides adoption and foster-care services in a manner consistent with Catholic beliefs about marriage. Because these and similar settings are predominantly religious in nature, the government lacks the compelling interest necessary to enforce secular family norms that run directly contrary to millennia-old religious beliefs and practices.

Third, Melling repeatedly insinuates that white racism is a basis for traditional family culture, an accusation intended to bolster the argument for denying religious accommodations for traditional family beliefs. But traditional, heterosexual marriage is the overwhelming norm for people of all races on all continents, and has been for millennia. To suggest that it is inherently a front for racism is untenable. Melling’s intersectional reach for racism is a rhetorical move to tap into the law’s strict opposition to racial discrimination, as opposed to its more flexible approach to matters of sex. Yet as explained above, in the context of traditional religious beliefs and practices pertaining to marriage, the Supreme Court has rejected the racial analogy. On the contrary, as noted above, the Obergefell majority affirmed that such religious beliefs are “honorable.”132 Likewise, the unanimous Fulton Court described Catholic adoption and foster-care agencies, which are underwritten by the same beliefs, as “a point of light.”133 And the Supreme Court has recently held that with respect to teachers and workers performing important religious functions, religious schools have an absolute constitutional right to make employment decisions based on adherence to such beliefs134—a right rooted in yet another unanimous Supreme Court decision.135 The Court is not buying the notion that the so-called Beaver trope is invidious like racism or that LGBTQ-nondiscrimination norms are of the same severity as claims for racial nondiscrimination.

This underscores a closely related fourth and broader point. Regardless of the academic merits of Melling’s anti-exemption argument, whether based in the racism analogy or other normative claims, the Supreme Court appears to have rejected it and instead adopted a pluralistic approach to sensitive cases involving religious hardship. The choice is not between exemptions and no exemptions. It is between legislative exemptions worked out in careful compromises or constitutional exemptions imposed by the courts. This is consistent with a key doctrinal basis of the Court’s sexual-rights cases: “[C]hoices central to personal dignity and autonomy[] are central to the liberty protected by the Fourteenth Amendment.”136 Beliefs and practices about marriage are certainly central to the dignity of millions of religious believers, as the Obergefell Court recognized.137

Fifth, Melling’s anti-exemption approach makes political compromise impossible. In 2015, Utah, among the nation’s most religiously conservative states, forged a compromise on LGBTQ rights and religious liberty in what became known as the “Utah Compromise.”138 Neither side was perfectly happy, but both sides got much of what they needed. Just as important, the Utah Compromise sparked a new era of goodwill. Support for LGBTQ nondiscrimination rights in Utah is now equal to that of Vermont and greater than every other state but New Hampshire.139 By contrast, the hardline, no-exemption approach of the federal Equality Act140—rejecting the accommodationist model of the Employment Nondiscrimination Act,141 which had religious exemptions and was strongly supported by the LGBTQ community for decades—has resulted in stalemate.142 As of this writing, despite Democratic majorities in Congress and a Democratic President, the Equality Act appears to lack even fifty votes in the Senate, much less the sixty needed to overcome a filibuster.143 LGBTQ persons lack basic protections in many states. The way forward for LGBTQ-nondiscrimination rights lies in pluralistic compromises that protect key LGBTQ rights while also respecting the dignity and rights of religious believers and their institutions.144

As a concluding comment, Melling notes that her essay “may be cast as another piece that casts those of deep religious conviction as bigots.”145 If so, that would be accurate, and increasingly par for the course among the culture war’s total-victory battalion. What is notable is not one more distorted caricature of traditional marriage beliefs and practices as akin to racism, but the frank willingness to embrace the real implication of that distortion. If traditional religious beliefs and practices regarding marriage are indeed like racism, as Melling’s Essay contends, then they are evil and dangerously antidemocratic—and thus, to the maximum extent permitted within a liberal democracy, they merit legal and cultural suppression so as to protect LGBTQ persons from the “dignitary and stigmatic harm” they cause.146 People and institutions who hold such beliefs and engage in such practices must change or become legal and social pariahs. Is there any other implication? A more certain recipe for injustice and perpetual conflict would be hard to imagine.

We can and must do better. The Supreme Court's words in Obergefell may well be the best response to Melling’s essay and to others who sincerely hold such views: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”147 Recognition of the implications of this undoubtedly true statement is the first step on the path forward.

Conclusion

Religious conservatives and LGBTQ progressives are often at odds. Neither group is going away, and neither will abandon its fundamental ideological and religious commitments. LGBTQ rights have broad support, including from the Supreme Court, but so do the rights of religious people and institutions to maintain their own beliefs and practices surrounding family and sexuality. With the Supreme Court increasingly protective of religious liberty, Obergefell’s stated commitment to pluralism in this tense area is now more salient than ever.

So I return to my opening question: Can we live with and accommodate divergent beliefs about marriage, family, gender, and sexuality? As a practical matter, we have no choice. In the interest of respect and peace, it is past time to take seriously our nation’s commitment to ideological and religious pluralism. The Supreme Court seems to be demanding just that, which means prudent policy makers should seek reasonable accommodations and protections for both sides rather than domination for one. The FFA Act represents one good-faith effort to use pluralism to reconcile diverse rights in the challenging adoption and foster-care space, and in many other areas of the law. No doubt there are other creative, fair, and durable solutions to these standoffs. Though imperfect to both sides, pluralistic solutions can accommodate competing interests and are far better than winner-take-all measures that foment perpetual, destructive conflict.

Alexander Dushku is an attorney in private practice in Salt Lake City, Utah. For over 25 years he has represented diverse religious organizations in matters related to religious liberty. He was one of the chief negotiators for the 2015 Utah statute balancing religious freedom and LGBTQ rights. The views expressed here are his own and not necessarily those of his clients.