Appeals court hears arguments in Oregon lawsuit on DHS protections for LGBTQ kids • Oregon Capital Chronicle

A federal appeals panel heard arguments Tuesday in a Malheur County woman’s lawsuit that challenges state adoption rules intended to protect  LGBTQ children on the basis of religious and free speech rights.

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

The state stopped her application and Bates sued, seeking a court order to overturn the state rule and allow her to continue the process. The district court denied Bates’ request for a preliminary injunction to proceed with an adoption while the legal challenge to overturn the state rule proceeds. 

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

The case centers on parental and children’s rights and pits a deeply religious widowed woman with five biological children against a state rule designed to protect vulnerable children. It has broad implications and could end up in the U.S. Supreme Court, potentially affecting tens of thousands of families nationwide. Similar cases are pending in Washington state and Vermont.

Jonathan Scruggs, senior counsel with Alliance Defending Freedom, represents Bates. The Arizona-based organization takes on cases across the nation with a focus on religious freedom, some involving abortion and LGBTQ issues.

During the livestreamed Seattle hearing, Scruggs argued that Oregon’s rule impacts others besides Bates, regardless of their religion. For example, Orthodox Jewish parents with similar beliefs about marriage could not adopt an Orthodox Jewish child under Oregon’s rule, he said. 

“The system is about taking care and placing every child,” Scruggs said. “It’s not about any particular child. And that’s the whole nature of the system. It’s to have a diversity of views so that you 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 parents who do not care for them. That rule became effective in July.

“Oregon has categorically excluded applicants up front, and really taken away the choice,” Scruggs said.

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

Thoennes argued that the rule does not hinder constitutionally guaranteed free speech rights and is focused more broadly on the conduct of parents with children. So while speech is part of a parent’s expected conduct with children, that is just one aspect, he said. 

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

“There are myriad ways that a foster parent, or any parent, for that matter, any caregiver, provides child care,” Thoennes said.

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

First Amendment argument

The appeals court could side with the district court’s ruling or overrule it, which would allow Bates to continue the adoption process. In either case, the suit will be kicked back to the district court to decide the legality of the state’s rule.

“Anytime you have a government entity excluding people because of their religious views and then compelling them to speak things that violate their core convictions, that goes to the heart of the First Amendment,” Scruggs said in an interview with the Capital Chronicle.

Scruggs said Oregon needs an adoptive system that works for all children of diverse backgrounds, pointing to Oregon’s long inability to placer foster children, sometimes boarding them in hotels.

“Oregon is basically saying we would rather put children in hotel rooms than be exposed to these loving families,” Scruggs said. “It’s just an egregious violation of the First Amendment.”

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

In an email, agency spokesperson Jake Sunderland declined to comment on the lawsuit, but said the agency’s practices are aimed at inclusivity that takes into account the well-being of children of all backgrounds.

“At a time when gender diverse people, policies, and laws are under attack, it is important to reinforce 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 young people, regardless of their gender identity.”