As I wrote in an article on June 16th, the day that Governor Abbott signed HB 3859 into law, HB 3859 will allow Texas adoption and foster care agencies to claim religious objection to certain groups, without fear of losing state funding. This law will restrict adoption and fostering opportunities for LGBTQ, single men and women, or non-Christian parents, and could allow child welfare services to send foster children to anti-gay “conversion therapy”. This law will actually make Christianity the “State Religion” as seen by Governor Abbott and so many religious right Republicans.
ACLU, Human Rights Campaign and Lambda Legal have already voiced their concerns about the constitutionality of this law and are prepared to take action as soon as the law goes into effect September 1st of this year. They all say the law violates the First Amendment prohibition of state-sponsored religion, also known as the Establishment Clause. As reported in an interview by The Texas Observer, Jennifer Pizer, the law and policy director for Lambda Legal, said the organization is contacting foster or adoptive children and families about the law so they can report discrimination. Pizer said a lawsuit against Texas would likely be filed after the law takes effect in a few months and once a potential plaintiff’s rights have been violated.
Of course faith based providers like Buckner’s Children’s Home and Catholic Charities come with their standard prepared answers which translate into “We don’t want to adopt to LGBTQ, Religions other than Christian, Single Parents, Mixed race marriages and basically whoever they choose to use “Religious Refusal” to turn away legally once the law goes into effect. Jennifer Allmon, executive director of the Texas Conference of Catholic Bishops makes her views quite clear when she says “The children in the Texas child welfare system deserve the best we have to offer, yet without conscience protection, it is the children and families in crisis who suffer. Conscience protections allow our faith-based providers to continue to be a safe and loving refuge for children in crisis and to accompany them on their journey to healing and wholeness, breaking the cycle of abuse and neglect one child at a time.” Seriously?? Allmon’s statement just does not hold water. Implying that only Christian heterosexual parents will provide the love and compassion needed to be caring parents is laughable.
Along with ACLU, Human Rights Campaign and Lambda Legal is another incredible watchdog group, the Freedom From Religion Foundation (FFRF), a nonprofit that focuses on litigating the separation of church and state throughout the United States. The foundation has two pending lawsuits against Texas for other alleged First Amendment violations. Staff attorney Sam Grover, for FFRF, made a statement saying “This idea that religious freedom allows people to impose their religious beliefs on others is untenable. The more the Legislature pushes this idea, the more legal problems the state will have.”
Last year, the Dallas Morning News reported that Texas has already spent more than $7 million fighting the 2015 class-action lawsuit that highlighted the state’s foster care crisis. Since the suit was filed in 2011, 1,138 Texas have children have died as a result of abuse or neglect. With HB 3859 Governor Abbott has not only signed religious discrimination into law but also has put the lives of thousands of children at risk as Texas faces multiple new lawsuits.
“TX 3859 – Open Letter to Texas Legislators from Texas Law School Professors”
On May 17th, 9 law professors from major Universities in Texas penned a letter to the Texas Legislature. The first paragraph of their letter to legislators gives us a brief summary of why HB 3859 is unconstitutional. “As legal scholars, we are writing to offer a legal analysis of, and express our deep concerns with, House Bill 3859 (H.B. 3859). We believe strongly that existing state and federal laws already provide ample protections for the religious liberty rights of persons and organizations within Texas. We also believe that if this bill becomes law, it will raise significant Establishment Clause concerns, and tangibly harm vulnerable children and families in Texas.”
You can read the complete document on Scribd.com titled “TX 3859 – Open Letter to Texas Legislators from Texas Law School Professors”
Here are just a few of the points made by the committee of 9 Texas legal scholars.
H.B. 3859 prioritizes the “sincerely held religious beliefs” of agencies over the welfare of children.
- H.B. 3859 tips the scales in favor of only one interest—the religious liberty and beliefs of child services agencies—foreclosing the opportunity for competing interests to be carefully weighed and properly considered.
- The absolute protection H.B. 3859 would provide to these agencies is overly broad and would make thousands of Texas’ most vulnerable homeless and runaway youth even more vulnerable.
- This unyielding preference for certain religious liberty rights overlooks numerous important government interests—including the need to prevent discrimination, ensure children’s welfare and protect the religious rights of children in foster care—and threatens to violate the Establishment Clause.
The bill runs afoul of existing protections ensuring children in foster care have their medical, mental health and psychological needs met according to the child’s best interest or expressed preference.
The Texas administrative code grants children in foster care a range of rights, including: the right to fair treatment, the right to receive educational services “appropriate to the child’s age and developmental level,” the right to have the child’s religious needs—which may be distinct from the religious beliefs of the agency—met, and the right of children to “not be pressured to get an abortion, give up her child for adoption or parent her child.” Texas also requires that children in foster care have the right to medical and mental health care “that adequately meet the child’s needs.”
The law could compel the state to contract with agencies that practice harmful, discredited “conversion therapy” or other unscientific “faith-based” treatments without considering the negative impact on children subjected to such treatment.
Texas would be unable to deny a child welfare social service provider a government contract even if the provider advocates that sexual orientation and gender identity may be changed through dangerous and medically-invalid “conversion therapy,” that children should abide by and be educated in accordance with biblical gender roles, that mental illness should be treated through prayer rather than conventional medical treatment, or that divorce is immoral, even in circumstances of domestic violence.
H.B. 3859 violates the Establishment Clause by allowing state funds to be used to compel minors into religious education, without providing ample opportunities for comparable secular instruction or support.
Where private individuals have no or insufficient choice in selecting a religious program, government support for a religious organization violates the Establishment Clause. Courts are particularly sensitive to Establishment Clause concerns when children are involved, as they are assumed to be especially susceptible to religious coercion.
- [H.B. 3859] therefore requires Texas to improperly contract with and fund organizations that include—or even mandate—religious programming. Even if youth are able to opt out of religious activities, or out of the program entirely, the placement of at-risk youth in programs that offer religious instruction nevertheless violates the Establishment Clause, as this placement would advance or endorse a particular religious viewpoint.