Family

Couple Barred from Fostering Their 1-Year-Old Great-Granddaughter Because of They Oppose Homosexuality and Gender Transitioning

The Washington Department of Child, Youth, and Families reached this decision based on the purely hypothetical possibility that maybe the 1-year-old might eventually be attracted to girls, or might want to transition to being a boy; but a federal judge just held in the great-grandparents’ favor.

|The Volokh Conspiracy |

From Judge Salvador Mendoza, Jr.'s opinion yesterday in Blais v. Hunter (E.D. Wash.):

James and Gail Blais hope to foster, and eventually adopt, their great-granddaughter, H.V. After H.V. was born [in September 2019], concerns about her welfare arose. The Idaho Department of Health and Welfare ("IDHW") ultimately removed H.V. from her birth parents' care and later reached out to the Blaises about possibly fostering or adopting her. The Blaises expressed an interest in caring for H.V., so IDHW asked the Washington Department of Children, Youth, and Families ("Department") to evaluate the Blaises for a foster care license.

To address the needs of foster children who are developing, discovering, or identifying themselves as lesbian, gay, bisexual, transgender and questioning (LGBTQ+), the Department has promulgated several regulations and policies for Department staff and foster parents providing foster care services. The Blaises are devout Seventh-day Adventists. Following a home study, the Department denied the Blaises' foster care license application. Their answers to a series of hypotheticals involving a foster child who might in the future develop or identify as LGBTQ+ did not conform to Department regulations and policy…. [The questions were:]

  • "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 informed [Patrick Sager, a foster care licenser,] that their Christian faith obliges them to love and support all people. 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."

Their answers alarmed Sager. He advised them that the Department would likely deny their application because their responses conflicted with the Department's policy to support LGBTQ+ children. "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."

After apprising his supervisor, they decided to send the Blaises educational materials and statistics about LGBTQ+ children. The email invited them to review the materials, so that they could "make a more informed decision about supporting LGBTQ+ youth in foster care."

Meanwhile, the Department also mailed the Blaises' adult children questionnaires to get more information about their parenting. One question probed, "If you needed someone to care for your child, either short or long-term, would you feel comfortable using the applicant(s)?" James Blais's son responded, "Short term, yes. I would be hesitant for something long term as 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 later declared that this provided him with independent proof that "Blaises' [lacked the] ability to adequately support all foster children."

After reading the materials provided, the Blaises reiterated their sincerely held religious beliefs and repeated their pledge to offer a loving and supportive home for any foster child in their care. Still, they held steadfast to their conviction that they would not support hormone treatment for a child wishing to transition. Sager then posed new but similar questions to the Blaises:

  • "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?"

Afterward, Sager again suggested that they abandon their request to become H.V.'s foster parents because their answers still conflicted with Department policy—the Blaises refused….

My thinking is that the Department's position was mistaken, and likely unconstitutional, because it interferes with the Blaises' right to a family relationship with her great-granddaughter. (See Moore v. City of East Cleveland (1977) (plurality opinion, but cited favorably by later majority opinions) (recognizing such a right, even outside the parent-child context).)

That would be true regardless of whether Blaises views stemmed from their religion, or from secular belief systems. And it would avoid what strikes me as the harder question whether the state could impose greater requirements on people who want to foster children with whom they have no prior relationship. Perhaps even some of those requirements are unconstitutional, but they strike me as raising somewhat different constitutional questions.

I also think the Department's position might well be unconstitutional under the Washington Constitution's religious freedom provision, which has been read to generally mandate religious exemptions from neutral, generally applicable laws.

But the Blaises sued under the Free Exercise Clause, perhaps because they wanted to be in federal court, and viewed that claim as more solid than the parental rights claim. And their lawyers' legal judgment on this score proved correct, at least at this point: Judge Mendoza held that the regulations likely violated the Free Exercise Clause, even though the Free Exercise Clause generally doesn't mandate religious exemptions from neutral, generally applicable laws. The opinion is long and complicated, but here are some key conclusions:

[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." But the Blaises' "'religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.'" Yet, to be eligible for a foster care license, the Department required the Blaises to divorce themselves from their religious beliefs. "Placing such a condition on benefits or privileges 'inevitably deters or discourages the exercise of First Amendment rights.'" …

In its ruling denying the Blaises application, the Department also invoked Wash. Rev. Code § 49.60.030 and Policy 5100 [which are antidiscrimination rules] as a basis for denying the Blaises application. Curious, as the Blaises had not actually discriminated against any child in their care, but instead simply answered hypothetical questions about hypothetical children.

That aside, the Department ignored how the law and policy actually work to protect the Blaises. Wash. Rev. Code § 49.60.030 declares the right to be free from discrimination because of creed. Policy 5100 likewise prohibits the Department from denying any person the opportunity to become a foster or adoptive parent based on their creed. Yet the Department ostensibly discriminated against the Blaises based on their creed. It denied the Blaises' application because their system of religious beliefs, as Seventh Day Adventists, do not align with Policy 6900 and other guidance….

Department regulations and policies appear neutral but in practice gerrymander to create unequal effect. As applied to the Blaises and others similarly situated, the regulations and policies disproportionately exclude persons who observe certain religious faiths from qualifying as foster parents based solely on speculative future conduct. In operation, Department regulations and policies eliminate a not insignificant cross-section of otherwise qualified persons from serving as potential caregivers based on their faith's stance on sexual orientation and gender identity and whether their religion supports certain issues LGBTQ+ youth might face.

The Court concludes Department regulations and policy operate as a religious gerrymander and are thus not neutral as applied to the Blaises and others similarly situated….

So far, I think the court's analysis is not correct: A law (whether an antidiscrimination law, a peyote ban, or one of a wide range of other laws) remains neutral and generally applicable even if it has "unequal effect" on certain religious believers, and "disproportionately exclude[s]" them from a certain benefit. Under Employment Division v. Smith (1990), the government may burden a practice that it views as creating secular harms (such as discrimination based on sexual minority status, or such as the possible health harms from peyote) even when that practice disproportionately affects people whose religious beliefs endorse the practice. Church of Lukumi Babalu Aye v. City of Hialeah (1993) makes clear that the government may not ban the same activity when done for religious purposes but allow it when done for secular purposes (in that case, by banning religious killing of animals but not a vast range of similar secular killing). But here the government is ostensibly banning discrimination against sexual minorities regardless of the motivation for such discrimination.

But the court then moves on to an exception to the Smith principle, and that exception might well apply here:

Sherbert v. Verner (1963), and its progeny Thomas v. Rev. Bd. of Ind. Emp. Sec. Div. (1981), and Hobbie v. Unemp. Appeals Comm'n of Fla. (1987), held incidental burdens on the free exercise of religion must be narrowly tailored to achieve a compelling state interest. Smith ostensibly restricted the scope of this line of cases by delimiting the use of strict scrutiny to a few categories of cases, including when the government has a discretionary system of "individualized … assessment." Strict scrutiny thus applies whenever the government denies a request for religious accommodation under "circumstances in which individualized exemptions from a general requirement are available." When applicable rules give state actors "unfettered discretion" unrestricted by "particularized, objective criteria," courts apply strict scrutiny.

As discussed above, several open-ended regulations and policies give the Department broad discretion—case-by-case—to determine whether a person qualifies for a foster care license. And 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."

The Department argues "the licensing rules are generally applicable and contain no exceptions that apply only to secular conduct." But Department guidance undermines this argument: "A holistic assessment is essential to achieve the intent of each section and make final recommendations regarding placement and permanency for children. All families are unique; these questions are not one size fits all." Department guidance thus envisions "circumstances in which individualized exemptions from a general requirement are available." The Department encourages licensors to consider an applicant's religious beliefs and stances on LGBTQ+ rights, and a distinctive feature of the foster care licensing process is the licensor's subjective assessment of various criteria….

Because the regulations and policies at issue operate as a religious gerrymander, target the religious for individualized assessments, and impose special disabilities on certain religious views, the law is neither neutral nor generally applicable in this case. The Court therefore concludes strict scrutiny applies…. [Under strict scrutiny,] "[t]he state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest." "The least-restrictive-means standard is exceptionally demanding," and it is not satisfied here.

As the Blaises point out, "[t]he Department permissibly could address LGBTQ+ concerns at the placement stage, rather than at licensing. It could address the issue at a later, more appropriate age. It could develop a case plan for the child to authorize medical decisions that the Blaises cannot support for religious reasons. Or it could change placements in the rare situation where the Blaises might be unable, consistent with the religious beliefs, to carry out the Department's decisions with respect to a particular child."

The court therefore blocked the Department from categorically banning foster parenting by people who have objections to homosexuality or gender transition, and also "enjoins Department July 2018 Policy Roll Out Questions & Answers to the extent inconsistent with this order":

LGBTQ, questions 4, page 3: "LGBTQ+ identities are discussed during the home study process. If there is a concern that the potential foster parents would not be able to appropriately meet the needs of any child or youth for any reason, they should be 'counseled out' or the home study denied. The WAC requires that state and federal laws regarding nondiscrimination must be followed.'"

And the court added:

That said, the Court does not enjoin the Department from taking LGBTQ+ considerations into account when reviewing foster care license applications. But a foster care applicant's answers to LGBTQ+ hypotheticals cannot serve as the sole determining factor when an applicant expresses sincerely held religious beliefs. It must base its decision on something more. If the only factor weighing against an otherwise qualified applicant has to do with their sincerely held religious beliefs, the Department must not discriminate against a foster care applicant based on their creed. The Department must make reasonable accommodations for religion—especially in cases like this one where the potential placement involves a biological family member. As Department guidance suggests, it must evaluate each applicant holistically: "All families are unique; these questions are not one size fits all." …

 

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  1. The judge should have sanctioned the licenser with $million damage to the family.

  2. If you needed another indication that progressives don’t care about children, here it is. Woke religious dogma mattered to them. The child didn’t.

  3. “Would we allow H.V. to have a girl spend the night at our home as H.V.’s romantic partner?”

    So Inslee’s disreputable government bureaucracy is encouraging children to copulate, knowing that by law they cannot consent?

    Kirkland will probably move to Washington if that is true.

    1. Presumably this Christian family will let a boyfriend sleep over and bang her, but not a girlfriend.

      1. A rational, unbiased thinker would not presume anything like this, not knowing the family.

  4. “If at age 14, a doctor ordered H.V. to undergo hormone therapy to change her sexual appearance, would we comply with that order?”

    What the hell gives a doctor any authority to order any non-emergency treatment to a minor? I could understand emergency treatment in an ER situation, but this? If the adult H.V. wants to change her sexual appearance, that’s her business. If H.V. can convince her parents, or guardians to go along, that’s their business. It is never up to the doctor. Whoever came up with question should be sent to jail for being a busybody authoritarian.

    1. “If at age 14, a doctor ordered H.V. to undergo hormone therapy to change her sexual appearance, would we comply with that order?”

      Yeah, I thought doctors didn’t give orders, but advice.

      1. Why am I not shocked that powerful bureaucrats who mooch off my tax dollars to make decisions about fundamental rights have a fundamental misunderstanding about the role of the medical profession?

        1. Because “powerful bureaucrats who mooch off my tax dollars to make decisions about fundamental rights” fundamentally misunderstand everything.

          I wouldn’t be surprised if one such tripped and landed on the ceiling because it had a fundamental misunderstanding of how gravity works.

        2. It has to be medically necessary to get a court order. Like harrassment impinging on the First Amendment, hyperventillation serves a political purpose to get around the Constitution.

          The USS Entrprise is still at yellow alert regarding “he made me feel bad so I can use the power of the state to silence him” escaping into the wild from business or scholastics.

          1. The ‘medical necessity’ is what was questioned, I suspect; that appears to have gone completely over your head. You do have the hyperventilating part correct, but are ascribing it to the wrong party.

  5. So they would deny people the opportunity to foster any child on the possibility that the child they foster might eventually identify as LBGTQ+?

    What is the probability of that happening?

    How many otherwise qualified foster parents would be banned for caring for children who need a stable loving environment?

  6. Holy crap. We’ve lost our minds.

    Thankful for the constitution and judges who still value it.

    1. You can’t lose what you never had.

  7. This is the crazy flip side of denying people the right/opportunity to foster children if they are LGBTQ+.

    Also, hypotheticals about when the child is a teen and whether having romantic sleepovers (regardless of sex of the partner) would be permitted? A “no” definitely isn’t outside the norm, regardless of what Washington CPS or I would do in that situation. There has to be a range of acceptable parenting that, frankly, should be quite broad and, generally, not ideology driven. Can we agree the fundamentalists on both sides need to chill out?

  8. What if the kid grows into an intelligent somewhat older kid that would be psychologically damaged by being fostered by gender theory zealots?

    1. Then they are happy to inflict such psychological damage. Inflicting damage upon children shows a high level of woke devotion.

      Lots of people might choose the wellbeing of children above progressive dogma. Sacrifice of (already born) children is the mark of the truly elite among the woke.

  9. You can’t lose what you never had.

  10. What a strange world we live in where you can be denied custody for not agreeing to let someone mutilate your child’s genitals or flood their bodies with artificial hormones…

    1. The ironic thing is if the general public knew 1/trillionth of the weird shit the core group of progressives get up to and how far the rabbit hole goes down. The manuals on techniques to brainwash your children, the devotion to chemically and surgically mutilating kids, the deerkin in charge of their social media accounts. It would be instant curtains for them for 100 years at least. Its like a grab bag of horror movie cliches.

      But by and large the public doesn’t know or since things sound so wild they have a hard time believing it and they don’t bother to dig beneath the surface to find out for themselves. Even the average conservative barely scratches the surface of all the wacky stories. To the average joe who gets all his information from the MSM we’re back in the fifties and the Democrats and liberals are a blue collar class party primarily concerned with working man Jim Sixpack and healthcare instead of the reality where they OCD on Twitter over stuff like misgendering and cultural appropriation just as much if not more.

      1. I know of this type of horror being done to infants and children, also adults, and it makes me weep. We have to keep telling others what’s going on and putting up with being called conspiracy nuts by those in deep denial and especially by those who are complicit at some level. So, thanks for your hard truth comment here.

        Here’s an incomplete list of what I’ve been told by personal sources is going on and also have researched:

        Kidnapping rings, ova and sperm theft, gender and otherwise mutilation, forced sterilization, sexual slavery, baby and child auctions, coerced “queering”, as they call it, sacrifice at the altar of atrocity, cannibalism of the young, baby farms for the underground perversity and organ market, entraining babies into becoming dogs (they never realize they’re human), pimping and sadism, MK Ultra type programming, torturing children and drinking their adrenochrome for “youthfulness”, artificial insemination during hideous trauma done to the birth mother in order to split the psyche of the baby to be, and even grotesque genetic engineering before conception.

        It’s being done here in Texas by a “sex and death cult” (their term) comprised of prep school creeps I went to school with, and the group includes doctors and lawyers and socialites. It’s being done everywhere around the world by, yes, a lot of twisted Progressives but also by orphanages and child protective services, world leaders and el-ite scum, luciferian secret societies, and by various other haters of humanity, most of whom are protected by organized LEO sub-groups and influential individuals.

        It’s being done by celebrities and people we personally know and don’t suspect are leading vile double lives, because they’re good at lying and seem to love their own children.

        1. “cannibalism of the young”

          I suspect that’s a crime. Have you contacted the police?

        2. The skeptic movement fought a decade+ war against satanic cult prosecutions, largely based on therapists planting, via leading questioning, false memories and statements. People have spent over a decade in jail due to it.

          It’s clear they may have assumed victory too soon. This is literally a retread of all that.

          1. This was back in the 80s through mid 90s.

            1. And it continues on in Sweden from the early 1990s through present, with some their feminist and Labour groups. Don’t try to make this a sociopolitical phenomenon of the past, or (and you haven’t) conservative vs liberal.

        3. I would suggest you not watch ‘Rosemary’s Baby.

        4. I’d suggest you not watch ‘Rosemary’s Baby’.

        5. I sincerely hope you reconsider your ‘reseach’ evidence. Nothing you described is real. It’s never too late.

  11. Professor Volokh…I read the cite Moore v. City of East Cleveland (1977). My question is why didn’t this case end right there, using the rationale from Moore? That puzzled me. The child was 1 (an infant), the father had no objection to his parents caring for his daughter short-term, and the child was related by blood.

    To me, this case represents bureaucracy run amok.

    1. How does the government even get involved? If the parents agree, just dump the kid off.

      1. When my wife and I were caring for our grandchildren, we had to get a court order so I could put them on my medical insurance.

  12. “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?”

    The state has no business promoting a treatment for mental illness that is well known to be destructive to the patient

    1. Which mental illness are you talking about? Gender dysphoria or religious belief?

      1. Religious belief is not usually a mental illness.

        The state should not have the power to interfere either in gender dysphoria or religious belief.

  13. “If at 15 years old, H.V. wanted to become a Socialist, would we support that decision and transport her to Party meetings?”

    Strange that they never ask questions like that.

  14. How should the agency handle applicants who indicate that they would try to force a left-handed child to become right-handed. Should it matter whether that position is rooted in either the (1) genuine positions of the applicants’ organized religion or (2) perceived and idiosyncratic positions of the applicants that the applicants ascribe to religion?

    Does the Seventh-day Adventist Church prescribe or promote bigotry among its followers with respect to homosexuality? How could these applicants reasonably be expected to handle a gay child?

    That one of the children of these applicants has indicated he would not wish to see them have long-term custody of a child seems relevant to this application.

    1. Ca. 1998, some schools were still forcing lefties to learn to write right-handed.

      All-knowing, all-intrusive government is always all-in, one side or the other.

      Maybe the problem isn’t who wields the power, but rather the existence of the power at all.

    2. Unsurprising that you present a strawman, and ignore the answers given by the Blaises, Kirkland. It’s as amusing as always that you point out the possibility of bigotry while demonstrating your own very real biases and bigotry.

    3. Speaking as a gay man… There is no indication that they would force the kid to do anything. And while it can be sad for gay kids that religious parents disapprove of their sexual behavior, such disapproval is hardly a disaster.

  15. I never heard of great grand parents becoming foster parents, regardless of their views.

  16. First word of title should be “Couple” not “Coupled” I believe.

    1. Maybe not, based on the hypothetical questions posed – – – – – – – – – –

    2. Yes, sorry, fixed.

  17. I think the court sided correctly with the Bigots, but they should also be roundly mocked for their backwoods fundamentalism that discriminates against someone based on their genetics.

    Since this is becoming less of a problem due to religion being exposed as a complete fraud, we won’t likely have to face issues like this as much moving forward.

    Sadly it seems that believers leaving their religion are instead shifting those beliefs to the political arena in blind partisanship.

    I think eugenics holds promise to root out “belief” in favor of tangible knowledge. Or perhaps a caste system where believers can continue believing in sky fairies and consequently inherit the lowest caste where they can feel persecuted to their hearts’ content.

    Then everyone is happy.

    1. I 100% agree! Eugenics holds so many possibilities for preventing tradegies! We will be able to radically improve suicide rates and mental health outcomes by selectively correcting the genes responsible for homosexuality and transgenderism!
      Having a standardized human baseline will be the next step on the road to true personal freedom!

    2. They are not discriminating based on genetics. They disapprove of sex outside heterosexual marriage, period. If you don’t marry, you shouldn’t have sex gay or straight, according to them. Genetics or sexual orientation have nothing to do with it.

    3. Atheist states have been among the worst in their persecution of homosexuals. Christians just tell you to stay celibate when you’re gay. Atheists believe in eugenics and education and will used violence and oppression against people who they suspect of wrongthink.

      As it turns out, even nasty, hateful, violent people like Granite can usually be turned into decent human beings when they are indoctrinated into stories of sky fairies in childhood. Without Christianity, they turn into brownshirts and communists at an alarming rates. The fact that Christianity is logically absurd and irrational doesn’t change that.

      (Spoken as a gay atheist growing up under evil, nasty atheists just like Granite.)

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