After an Idaho state government agency denied the great-grandparents of a 1-year-old girl the right to apply to be her foster parents and eventually adopt her because of their religious views vis-a-vis sexuality, a United States District Judge reversed the decision, holding that the state regulations likely violated the Free Exercise Clause and thus ruling in the great-grandparents’ favor, allowing them to apply for a foster-care license.
As Professor Eugene Volokh writes in Reason, James and Gail Blais, devout Seventh-Day Adventists, wanted to foster and eventually adopt their great-granddaughter, “H.V.” That was prompted by the Idaho Department of Health and Welfare (IDHW) removing H.V. from her birth parents’ care, then contacting the Blaises about the possibility of fostering or adopting her.
IDHW then asked the Washington Department of Children, Youth, and Families (WDCVF) to evaluate the Blaises to see if it was appropriate for them to have a foster care license.
The IDHW asked the Blaises to answer questions such as;
How would we react if H.V. was a lesbian?”
Would we allow H.V. to have a girl spend the night at our home as H.V.’s romantic partner?”
If at 15 years old, H.V. wanted to undergo hormone therapy to change her sexual appearance, would we support that decision and transport her for those treatments?”
If as a teenager, H.V. wanted to dress like a boy and be called by a boy’s name, would we accept her decision and allow her to act in that manner?
The Blaises told Patrick Sager, a foster care licenser, that their Christian faith instructed them to love and support all people. Volokh notes:
They conveyed that this tenet especially applies to children who may feel isolated or uncomfortable. As for the specific questions on possible hormone therapy, they “responded that although we could not support such treatments based on our sincerely-held religious convictions, we absolutely would be loving and supportive of H.V.” They “also indicated that, in the unlikely event H.V. may develop gender dysphoria (or any other medical condition) as a teenager, we would provide her with loving, medically and therapeutically appropriate care that is consistent with both then-accepted medical principles and our beliefs as Seventh-day Adventists and Christians.”
Sager then informed the Blaises that the Department would likely deny their application, noting, “For example, they were not willing (a) to support hormone therapy for transitioning, even if it was medically necessary or recommended, or counseling that was not consistent with their religious beliefs; (b) to support boys wearing girls’ clothes or vice versa; (c) to allow H.V. or other foster children to date in the future; or (d) to call a foster child by their preferred name if it was different from their given name.”
The Blaises received educational materials and statistics about LGBTQ+ children in order to educate them about “supporting LGBTQ+ youth in foster care.” IDHW contacted the Blaise’s adult children to ferret out information about their parents’ parenting. The Blaise’s son answered, “ … I have different religious views than my father and I wouldn’t necessarily want that environment for my child for the long term. I raised my daughter that no religion is perfect and not having religion in your life is fine as well. It’s ultimately an individual’s choice and my father has stringent religious views concerning same-sex marriage, inter-racial marriages and relationships in general.”
Sager used that information to show that “Blaises’ [lacked the] ability to adequately support all foster children.” Meanwhile, the Blaises perused the educational materials, after which Sager sent more questions, including:
If H.V. had a lesbian girlfriend, would we be willing to have her visit our home and possibly travel with us?”
Would we find it acceptable if H.V. dressed like a boy?”
Would we find it acceptable if H.V. wanted to be called by a boy’s name?”
If at age 14, a doctor ordered H.V. to undergo hormone therapy to change her sexual appearance, would we comply with that order?”
If at age 14, H.V. said that if we did not agree with her having hormone therapy she would leave our home and run away, how would we respond?
Sager said that the second round of answers did not suffice, and the Blaises should stop trying to become H.V.’s foster parents, prompting the Blaises to sue.
Judge Salvador Mendoza Jr. wrote in his decision:
[T]he regulations and policies at issue … work to burden potential caregivers with sincere religious beliefs yet almost no others. For the most part, the only foster care applicants who might object to supporting certain issues LGBTQ+ children might face will likely do so on religious grounds.
The Department’s interpretation of its regulations and policies also favor certain secular viewpoints over certain religious viewpoints. For example, the Department favors religious and non-religious applicants who have neutral or pro-LGBTQ+ views over religious and non-religious applicants who have non-neutral or anti-LGBTQ+ views. Several open-ended regulations and policies give the Department broad discretion—case-by-case—to prohibit people from participating in foster care because their sincere religious beliefs conflict with Department LGBTQ+ policy. Department guidance gives licensors “flexibility to ask different or additional questions in order to make the home study process more accessible as well as to ensure that any areas of concern are fully developed and can be thoroughly assessed.” While these regulations and policies’ secular purpose assuredly have the best interests of children at heart, in practice, these laws work to preclude people with certain religious beliefs from participating in foster care.
Here, approval of the Blaises’ application hinged on their stance on LGBTQ+ rights and whether they intended to remain faithful to their religion. The Blaises believe “Scripture provides guidance to those who experience incongruity between their biological sex and gender identity.” The Department denied their application because this tenet of the Blaises’ faith flouts Department regulations and policy, as interpreted by Department staff. The Department thus “punish[ed] the expression of religious doctrines it believes to be false.”
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