Angela Giampolo of Giampolo Law. Angela Giampolo of Giampolo Law.

Most children live with the expectation that they’ll grow up, get married, and one day, have kids—I think that’s even a song! But, for children who realize they’re a member of the LGBTQ community, the certainty of parenthood is now in question. As it stands, many young people are nervous coming out to their parents because they fear their parents will assume they will never get to experience grandchildren. With that said, there are many paths to parenthood; science helps via surrogacy and in vitro fertilization as well as adoption.

Two states, Kansas and Oklahoma, are joining the ranks of states now depriving the LGBTQ community of adoption. Both states have passed legislation to allow faith-based adoption agencies the right to discriminate by denying same-sex couples—or indeed, any adoption candidate who doesn’t meet their religious litmus test—access to the adoption process.

Last year we saw nine major anti-LGBTQ bills be signed into law—including three laws that allow child welfare organizations to turn away qualified LGBTQ parents seeking to adopt. In Texas alone, lawmakers introduced over 30 anti-LGBTQ bills making up nearly a quarter of all anti-LGBTQ bills nationwide. Despite huge outcry, two of them became law. One allowing adoption and foster care agencies to turn away prospective LGBTQ couples, single or divorced parents and interfaith parents and the other law allowing ride-sharing companies like Uber and Lyft to discriminate against Transgender riders—regardless of the fact that both companies opposed the measure and both have gender identity-inclusive nondiscrimination policies.

The danger of these anti-adoption bills is that they give anyone with a religiously held belief that same-sex couples are unfit for parenting a license to deny them the right to have a family. Nontraditional families will be be turned away and even worse, in Kansas, the law applies to state-based agencies receiving taxpayer funding.

Conservative supporters of the bills argue that the intent isn’t to discriminate against nontraditional families seeking to adopt or foster, but to protect those organizations like Catholic Charities, who’ve reduced their adoption and fostering services out of fear of a lawsuit claiming discrimination.

This is a strawman argument: nontraditional families aren’t likely to seek adoption or fostering services through Catholic Charities to begin with. But in legalizing discrimination against same-sex and other nontraditional families, Kansas and Oklahoma allow a religious employee to refuse services based on their faith. While Oklahoma’s bill didn’t include a provision allowing agencies receiving federal and state funding to discriminate, Kansas’s bill did. In Kansas, anyone of faith working in adoption and fostering services—federally or state funded as well as private—can deny an LGBTQ couple the right to have a family.

Should both these bills be signed into law, they face serious Constitutional challenges. In 2016, District Judge Daniel P. Jordan struck down Mississippi’s ban on same-sex adoption, citing the majority opinion in Obergefell v Hodges; the U.S. Supreme Court decision that legalized same-sex marriage nationwide.

“States have contributed to the fundamental character of marriage by placing it at the center of many facets of the legal and social order. There is no difference between same- and opposite-sex couples with respect to this principle, yet same-sex couples are denied the constellation of benefits that the states have linked to marriage and are consigned to an instability many opposite-sex couples would find intolerable. It is demeaning to lock same-sex couples out of a central institution of the nation’s society, for they too may aspire to the transcendent purposes of marriage,” SCOTUS majority opinion, Obergefell v Hodges.

The provisions of marriage, as defined in the Obergefell opinion, according to Jordan, include adoption. Mississippi was thought to be the last state to have such a ban on record, but since the ban’s downfall, Texas, Georgia, Alabama, Virginia, and the Dakotas have passed legislation instituting new bans based on religious freedom. Kansas and Oklahoma will add their names to that roster, once their governors sign.

In June 2017, SCOTUS intervened to issue a summary reversal of an Arkansas Supreme Court decision that ruled the state did not have to register the spouse of a same-sex couple on a birth certificate. For opposite-sex parents the practice has always been that the mother’s husband is automatically added to the child’s birth certificate, regardless of the genetic relation. But with a same-sex couple, the birth certificate left off the biological mother’s wife with the only difference being the sex of the mother’s spouse. The U.S. Supreme Court stepped in and held that even in Arkansas, Obergefell v. Hodges provides same-sex couples all the benefits that the states have linked to marriage for opposite-sex couples.

Research shows that LGBTQ couples are four times more likely to adopt children, and six times more likely to raise foster children than their non-LGBTQ counterparts. By shutting out these families through outright denial of services these states are doing the opposite of what conservatives claim their intent is; they’re reducing the number of willing families eligible to adopt or foster and not increasing them. As such, in my opinion, these two soon-to-be laws, and the bans in Texas, Georgia, Alabama, Virginia, and the Dakotas, will face an uphill battle to prove they are constitutional.

Lori Ross, CEO of FosterAdopt Connect, which operates in Missouri and Kansas, has said, “There’s probably more than 120,000 Kansas citizens who identify as gay or lesbian, those are 120,000 Kansas citizens who are paying tax dollars to the state. They should have access to step up and be a provider for foster care or be an adoptive family if they choose to be.” Ross also fears the passing of this legislation will end up hurting the state’s economy and even worse, sends the wrong message to LGBTQ children in the foster care system.

Ross fears for LGBTQ families looking to adopt, saying it isn’t always clear which agencies will be supportive and which won’t be. If a same-sex couple makes that first phone call and gets denied, they could stop the attempt and never try again. The same could be said for divorced, or single, or Jewish people. If they don’t fit the Christian ideal, they don’t get to participate, or they could face humiliating refusal before finding a sympathetic agency who won’t discriminate.

While Mississippi’s ban was the last one of its kind—an all out same-sex adoption ban—this new iteration of laws citing “religious freedom” to discriminate has yet to face challenges in any of the states that have instituted them. But in light of the SCOTUS Summary Revision in the Arkansas birth certificate case and the striking down of Mississippi’s ban as an extension of Obergefell’s constellation of marriage benefits, it’s difficult to see how these adoption bans have any constitutional basis to stand on.

Angela D. Giampolo, principal of Giampolo Law Group, maintains offices in Pennsylvania and New Jersey and specializes in LGBT law, business law, real estate law and civil rights. Her website is www.giampololaw.com and she maintains two blogs, www.phillygaylawyer.com and www.lifeinhouse.com. Contact her at angela@giampololaw.com.