Appeals court hears arguments in Oregon lawsuit over DHS protections for LGBTQ children • Oregon Capital Chronicle

Appeals court hears arguments in Oregon lawsuit over DHS protections for LGBTQ children • Oregon Capital Chronicle

A federal appeals panel heard arguments Tuesday from a Malheur County woman who is challenging state adoption rules intended to protect LGBTQ children on the grounds of religious and free speech rights.

Jessica Bates, who lives in Vale, sued the state Bates was tried in April 2023 in Portland District Court after the Oregon Department of Human Services barred her from qualifying as a foster parent. The state requires foster parents to support LGBTQ children they adopt, which goes against Bates’ Christian views. Bates has said she believes marriage is between a man and a woman and that God created people to accept their gender, not change it.

The state blocked his request, and Bates filed suit, seeking a court order to overturn the state rule and allow him to proceed with the process. The district court denied Bates’ request for a preliminary injunction to proceed with the adoption while the legal challenge to overturn the state rule continues.

Bates’ appeal of that decision was heard Tuesday by the 9th Circuit Court of Appeals.

The case is about the rights of parents and children, pitting a deeply religious widow with five biological children against a state law designed to protect vulnerable children. It has far-reaching implications and could end up before the U.S. Supreme Court, potentially affecting tens of thousands of families across the country. Similar cases are pending in Washington state and Vermont.

Jonathan Scruggs, a senior attorney at Alliance Defending Freedom, is representing Bates. The Arizona-based organization handles cases across the country, with a focus on religious freedom, some involving abortion and LGBTQ issues.

During the livestreamed hearing in Seattle, Scruggs argued that the Oregon law impacts people other than Bates, regardless of their religion. For example, Orthodox Jewish parents with similar beliefs about marriage would not be able to adopt an Orthodox Jewish child under Oregon law, he said.

“The system is about taking care of every child and placing them,” Scruggs said. “It’s not about any one child. That’s the nature of the system. It’s about having a diversity of perspectives so that we can match children with the best family.”

Scruggs also pointed to a federal rule, finalized under the Biden administration, that designates qualified providers for gay or transgender children without penalizing foster families who fail to care for them. That rule went into effect in July.

“Oregon categorically excluded candidates from the start and really removed choice,” Scruggs said.

Philip Thoennes, an Oregon Department of Justice attorney representing the state, said the district court’s denial should stand.

Thoennes argued that the rule does not infringe on the constitutionally guaranteed freedom of expression and that it applies more broadly to parents’ conduct with their children. So while freedom of expression is part of a parent’s expected conduct with their children, it is only one aspect, he said.

Expectations for parents to support children and their identities extend to other areas, such as supporting a child’s choice of clothing and hairstyle, he said.

“There are a multitude of ways that a foster parent, or any parent, for that matter, any caregiver, can provide care to children,” Thoennes said.

The Oregon Department of Human Services rule applies only to state adoptions, not private adoptions.

First Amendment Argument

The appeals court could side with the district court or reverse it, allowing Bates to move forward with the adoption process. In either case, the case will go back to the district court to decide whether the state’s decision was legal.

“Any time a government entity excludes people because of their religious views and then forces them to say things that violate their core beliefs, that goes to the heart of the First Amendment,” Scruggs said in an interview with the Capital Chronicle.

Scruggs said Oregon needs an adoption system that works for all children of diverse backgrounds, pointing to Oregon’s long failure to place children in foster care, sometimes placing them in hotels.

“Oregon is basically saying we would rather put kids in hotel rooms than expose them to these loving families,” Scruggs said. “That’s just a blatant violation of the First Amendment.”

The Oregon Department of Human Services declined to make its attorneys or foster care officials available to answer questions.

In an email, agency spokesman Jake Sunderland declined to comment on the lawsuit but said the agency’s practices aim for inclusion that considers the well-being of children from all backgrounds.

“At a time when gender diverse people, policies and laws are under attack, it is important to strengthen our values ​​and practices related to the children and families we serve,” he said in an email. “We are committed to creating a safe and supportive environment for all children and youth, regardless of their gender identity.”