The Volokh Conspiracy
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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." …