Litigation Update: Bates v. Pakseresht

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Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, September 28, 2023, we’re excited to host a Litigation Update on Bates v. Pakseresht—a case concerning the Oregon Department of Human Services rules for potential adoptive parents, free speech, and free exercise. My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society.

As always, please note that all expressions of opinion are those of the experts on today’s program, as The Federalist Society takes no position on particular legal or public policy issues. Now, in the interest of time, I’ll keep my introductions of our guests today incredibly brief, but if you’d like to know more, you can access their impressive full [email protected].

Today, we’re fortunate to have with us Jonathan Scruggs, who is Vice President of Litigation Strategy and the Director for the Center of Conscience Initiatives at the Alliance Defending Freedom and the lead attorney representing Jessica Bates—the Bates in this case. Mr. Scruggs has been with ADF since 2006 and is a member of the bars of Arizona and Tennessee, and he is also admitted to the U.S. Supreme Court and multiple federal district and appellate courts.

Also, joining us today as our moderator for today’s conversation is Miles Coleman, who is a Partner at Nelson Mullins Riley & Scarborough LLP, where he practices in the areas of appellate law, business litigation, and First Amendment law. He is also an NFL Players Association certified agent. I’ll leave it there.

As a last note, throughout the panel, if you have any questions, please submit them via the question and answer feature likely found at the bottom of your Zoom screens so they’ll be accessible when we get to that portion of today’s webinar. With that, thank you all for being with us today. Mr. Coleman, the floor is yours.

Miles Coleman:  All right, thanks very much. Welcome, everyone. We’re pleased to be here today. I think we’ll have an interesting discussion, and I hope you think so as well. Jon, welcome. Thanks for being here with us today. I know that in the course of your work at ADF, especially with the conscience rights team that you lead there, you’ve worked on some cases that I know we’ve all heard of: Masterpiece Cake Shop, 303 Creative, recently Brush & Nib, and some other cases.

We want to talk to you about one that you’re working on right now—the Bates case, as we’ve already heard—at a super high level, which has to do with a woman seeking to become a foster or adoptive parent in Oregon and who has run into some obstacles that are related to her faith.

What we’ll plan to do, if this sounds okay to you and everybody else, we’ll spend maybe 10 or 12 minutes kind of talking about the facts of the case, make sure we understand the facts, the procedural posture, where it’s at. Then we’ll pivot to talk about some of the legal issues related to it. And then, of course, we’ll save some time at the end for questions from the audience.

Why don’t we start with this? I’ve had an opportunity over the past decade or so to do some foster and adoptive care work—legal work—myself, sometimes, on constitutional issues but sometimes not. And one thing that I have found to be consistently true in all of those different contexts was the folks who are serving children in need have just such a deep sense of calling to do it. So let’s start by talking a little bit about your client, Jessica Bates. Who is she? Why does she want to foster or adopt? Just tell us a little bit about her.

Jonathan Scruggs:  Yeah, absolutely. And like you said, Miles, a lot of the people you interact in this sphere are really inspirations, and I think that’s definitely true of our client. She has a pretty inspirational story but somewhat of a tragic story in a sense, too.

So, in 2017, she was driving with her husband to work. She lives in Oregon, and it was a snowstorm, I believe, and she got collided head on with someone in a car, actually, someone who had been earlier released. It was part of a mental institution, a state mental institution, was released by the state and earlier that day had stabbed, I believe, his ex-wife.

So he was running from the police and head-on collided with Jessica and her husband. Her husband died, and Jessica was injured substantially and basically left to raise her five children, which, obviously, is an enormous tragedy. But her church family, her community came around her, supported her.

So numerous years later, she was just going -- again, going to work and was listening to a religious broadcast on the radio and heard about a story of a man who fostered. And she felt called and convicted after hearing that story to adopt herself. So she wanted to adopt two children under the age of nine. Her youngest child at the time was about 10, so she wanted to adopt someone younger than her youngest child—so someone under that sibling pair under the age of 9.

She initially looked to do some international adoption, but that was prohibitively expensive and so eventually wound up going through the state process in Oregon. So she really decided to adopt for purely religiously. She’ll tell you that she felt called.

There’s a Bible verse in James that talks about how God calls people to care for orphans and widows. And she felt convicted and inspired that, in the same way, she felt that God had helped her through the death of her husband, that she was being called to help others in need, and that was her religious motivation for starting that process.

Miles Coleman:  Okay. And was she seeking -- I don’t know if Oregon is considered a licensure or accreditation or some sort of state imprimatur of her ability to participate in the program. Is that generally --

Jonathan Scruggs:  Yes, that’s right. You can adopt a foster in numerous ways, and it varies from state to state. In Oregon, you can go through an independent agency, but that still has to be approved at the end of the day by the state. But she went directly to the state. She went to the Department of Human Services and started -- essentially, you have to get licensed by the state to foster and then adopt.

Miles Coleman:  Okay. And typically, at least in my experience, that licensure process is going to involve a background check. The fire marshal comes out to make sure that your house is -- you got fire alarms and fire extinguishers and that sort of thing. I’m going to assume that she passed all of those requirements, but she ran into a hurdle at some point. Talk us through that a little bit.

Jonathan Scruggs:  Yeah, yeah. So she actually ran into a hurdle pretty quickly. So the first stage, you kind of apply and go through what’s called a “home study,” and that -- you get some training information, and the state evaluates you. Basically, are you fit to be in the process? There are various boxes you have to check, and then you have to go through training.

And then if you pass that initial stage, eventually, they will do a home inspection, that officials will come home, interview your current children, interview family and friends, interview you to make sure that everything is good, and then it goes through really the matching process. Just because you become eligible, then you got to decide, “Okay, what’s the best fit for a particular child?”

So Jessica started that process, and she was going through it with no trouble starting that home study, and she went through the training of it. During that training, they present various [inaudible 07:40] issues and whatnot. And in that training, there is a heavy emphasis on how to relate to children who identify as gay or sexual orientation and gender identity issues.

And, in fact, in the training, it was said that, “Well, you have to use children’s professed pronouns consistent with their gender identity rather than their biological sex.” You have to be willing, for example, to take a child to a gay pride festival, that you can’t take a child to events that are not supportive of their sexual orientation, gender identity, for example, such as -- it singled out religious events.

So she went through that training, and that kind of raised some concerns for her because of her religious beliefs. So she then emailed -- reached out to her kind of contact at the state in the process and said, “Hey, I just want to be clear. The program was great. I can love and accept and support any child that you put in my home, but I can’t support these behaviors I disagree with, such as using a child’s preferred pronoun if it contradicts their biological sex, or take a child to go get hormone shots to facilitate a gender transition.”

Then the official called back and they talked about that, and the official raised that point about, “Well, this is a problem. Will you be willing to take a child to get hormone shots?” And she said, “No, I can’t do those things.” And she emphasized, “Hey. I mean, I’m seeking a child, two children under the age of nine, any child, an infant, for example, the age of one or two.” But the official was like, “Well, we just don’t know who will eventually identify as gay or identify as a different gender, so we can’t approve.”

So she eventually got that denial letter from the state that said -- that acknowledged that she would be willing to accept any child and love any child, but she failed to comply with a provision that says, basically, someone has to be willing to accept, support and respect a child’s race, ethnicity, sexual orientation, gender identity, spiritual beliefs, things along those lines. So basically, Oregon interprets that to say you’ve got to be willing, even if it violates your religious beliefs, to do those types of things.

Miles Coleman:  I might be kind of jumping ahead of myself here, and I think you’re not into the discovery phase, the proceeding yet. But do you know -- the reason I’m asking this, I’m analogizing South Carolina.

In South Carolina, once you’re licensed by the state, for example, as a foster parent, even then, when there’s going to be a match—even when again, in our case, DSS, Department of Social Services, has a child that needs a placement—there is both an obligation at the match stage, at the placement stage, both on the state agency and the right of the licensed foster parent to decline a match, right?

So, for example, if the state has a child whose family of origin is Jewish and who wish for the child to be placed in a Jewish home, the state is obliged to try, if at all possible, to honor that request of parents. Meanwhile, the foster home could say, “No. We’re in a really busy season right now. We aren’t able to take a child.”

I bring that just because I’m curious because you touched on the point that Jessica is specifically looking for younger children. And I’m just wondering. If part of the issue flagged by the state is both perhaps an unlikely issue, relatively speaking, the younger the child is and could, in fact, perhaps be prevented entirely by licensing her and then just working on it at the matching stage. Do you -- if from a regulatory standpoint is how it works and --

Jonathan Scruggs:  That’s exactly right, and that’s one of our big arguments here, that you can resolve a lot of these issues at the matching stage later on rather than upfront. So, as you know, Jessica requested, and they allow that to request a child based on a certain age, and you can even do that based on sex. You can even request children if you feel uncomfortable, I think, based on disability, right? So you can imagine a scenario where a family has all boys and they need to have another boy just for physical accommodations in their house.

So, yes, there are all these exceptions, and that goes to what we’ll talk about is our free-exercise argument, that if the state can make these exceptions in other contexts, they can make it for Jessica. And it even goes beyond that. I mean, I think just logically think about religious, spiritual values, cultural beliefs, right? It wouldn’t make much sense.

You could have a Muslim family, right? You’re not forcing them to promote Catholicism if a child is Catholic or to do something along those lines. Or along those cultural beliefs, it could be some type of -- a Jewish family has certain rules about food. How do you square that? And all these issues, we feel like, are best resolved at the matching stage later on. Put the right child with the right family rather than exclude someone up.

Miles Coleman:  Okay. And I kind of got us a little bit off track there in terms of the chronological sequence of things, but let me get back on the track. So Jessica applied, had this training event. There was a subsequent -- it sounds like correspondence back and forth between her and the agency.

At what point did she decide to seek legal representation? How did she get connected to you? How did you and ADF get involved in the case? And then when and where did you sort of take your next steps?

Jonathan Scruggs:  Yeah. So she got this formal denial letter, and that again, to emphasize, that means she could no longer foster or adopt a child. She was excluded per se from the system. And so she just reached out to us. We have an intake system, and she reached out to us because we’re well known as people who defend religious liberty. And we just started that process of evaluating her case.

So she got denied, I think—I have to go back and look at the dates—the end of 2022. And then we filed a lawsuit. I think it was April of 2023. And with our complaint, we kind of pulled into the procedural posture. With our complaint, we filed a motion for a preliminary injunction simultaneously with the complaint and had to brief that. That took a bit of a time.

And we had oral argument before the district court judge. We filed in the district court of Oregon, and we had oral argument on the preliminary injunction in August. And so we’re really waiting. That’s the latest thing that’s happened. We’re just kind of waiting for the judge to decide that motion.

Miles Coleman:  Okay. And I’m assuming, but correct me if I’m wrong, your complaint is seeking a declaratory injunctive relief and I assume [inaudible 15:04] action, attorneys’ fees upon success. Any other relief requested?

Jonathan Scruggs:  Yeah. No, we’re not seeking any type of damages or anything along those lines. It’s purely declaratory injunctive relief just to give Jessica back access to start the process.

Miles Coleman:  And the same for the motion for PI because that would just be -- I guess from a practical standpoint, what would be the injunctive remedy at the PI stage?

Jonathan Scruggs:  Yeah, it would just be, again, to allow her to access the program, to start the process where she ended off. And that’s really important because the ultimate relief we’re seeking is not to have Jessica adopt or foster a specific child. At the end of the day, it’s really just to access this program on an equal basis as others. Her kids are getting older. She has five kids, and some eventually will start to go to college, and she wants to start that because it could take a while to match with the right child. So time is ticking in some respects.

Miles Coleman:  Okay. The complaint you mentioned a second ago, you got a complaint filed. You’ve briefed and argued. A motion for PI has been decided. Motions to dismiss or answers yet?

Jonathan Scruggs:  There was an answer filed, so no motion to dismiss. So we’re definitely going to go to discovery. I think both sides are really kind of waiting on to see what the judge does at the preliminary injunction decision to maybe give people guidance.

Miles Coleman:  Okay. In the complaint, what claims, what causes of action have you asserted?

Jonathan Scruggs:  We’ve asserted three claims: free speech, free exercise, and equal protection. I’ll probably focus mostly on the free speech and free exercise. The equal protection is similar to free exercise. But for this free speech, it’s simple.

It’s primarily both compelled speech and restricted speech to go to the point of -- and also, association, along the same lines there. That’s basically conditioning Jessica’s access to the program to force her to use pronouns that violate her core convictions compels her to speak—saying that she can’t take her child to various religious events, like her church or going to a youth group or can’t explain her religious beliefs about gender identity or sexual orientation. It violates her religious speech rights. So that’s kind of, I think, pretty basic.

For the free exercise, it’s similar. We rely really heavily on the fact that there are all these exceptions that we talked about. So that makes the law -- the provision not neutral or generally applicable because the state can grant these other exemptions. And we talk about some of those, for example, independent adoptions.

There’s a mechanism for, in fact, I think most people go through what’s called independent adoptions is often a biological parent will adopt -- allow a different relative to adopt without going through the foster care per se system. And the state sometimes requires those families to do a home study which submit the requirement, follow the requirements that they impose on Jessica, but sometimes they weigh that. And so that creates an individualized assessment under the Fulton case.

We mentioned some of those other exceptions about, “Well, you can ask a child for a particular age or a particular religion”—things along those lines—“that creates exceptions, that make the law lack general applicability.” So that’s our free-exercise argument.

And then, like I said, we didn’t bring the equal protection argument in the motion for preliminary injunction. But one of the arguments there is Trinity Lutheran, which says you can’t condition the benefit on religious status, also is an equal protection type argument, too, because religious status is a protected class under the Equal Protection Clause. So those are the general arguments that I hightlighted.

Miles Coleman:  All right. Well, let’s back up because I got questions.

Jonathan Scruggs:  Yeah, I love that.

Miles Coleman:  And then, hopefully, you got answers. We’ll find out. So this is a fact pattern when you sort of first hear it, first read it—even at a pretty high level—right off the bat, you think free exercise and you think equal protection. You don’t, or at least I don’t. I like to think I at least have a little bit of -- dipped a toe in these waters before.

You don’t think association, assembly, and maybe you don’t immediately think speech. So I’ve got a couple of questions there. First, that’s your first cause of action. Why’d you lead off with that?

Jonathan Scruggs:  Well, I think it’s just -- the Supreme Court has been pretty protective or really frowning on compelled-speech situations and free speech in general, and we think it’s an important principle to protect free speech. And one of our arguments in this case is, in this, is, in some ways is broader than just religious persons, right? Excluding a group of people for holding certain views, for speaking certain views the government disagrees with is pretty problematic. And I think this is an example of that.

Litigation wise, you don’t have to go through the process. As every litigator knows, in every free-exercise case, you have to encounter Smith, The Employment Division v. Smith. So you cannot have to worry with that and go right to a compelled speech, free-speech analysis. And so we think we’re on pretty strong grounds there. As you mentioned, 303 Creative, I think, is very helpful, and that came up at the preliminary injunction hearing.

So it is broader than just religion in these types of cases. And I’d note that I think it’s pretty unusual the reason it probably hasn’t come up. I think there are a lot of free speech issues that have come up in the custody context. You can imagine where a Muslim dad or a mom who converts to Catholicism, how do you handle who has custody of her child and what religious events they can go to, what speaking events? You’ve even seen courts in family law contexts impose type of prior restraints on what can be said in various situations.

So it has come up in the custody context but pretty rare in the foster adoption context. And I think that’s just because it’s kind of a common sense thing of why impose a per se rule on, “You’ve got to say this message you disagree with. You can’t say this message.” Again, you would think that would be able to be handled at the matching stage rather than up front.

Miles Coleman:  Anyway, let me ask another one on the compelled speech, and bear with me. It’s going to take me a second to tee this up because I got to explain two cases. I’m going to assume that anybody who’s spending an hour of their lunch break listening to two nerds talk about the Constitution is probably familiar with these cases. But nevertheless, I just want to make sure that everybody’s tracked along with us.

So you’re talking about compelled speech, right? A seminal case on compelled speech, Wooley v. Maynard. George Maynard doesn’t want “live for or die” on his license plate. He snips it off. He gets arrested. He goes to jail. It goes to the Supreme Court.” They say, “No, the state can’t force you to be a mobile billboard driving around.” Okay, that’s compelled speech.

That’s not exactly what this is, and I’ll push back on you here a little bit. That’s not quite what this is. This feels or could seem—I’m not going to stake out a position on myself—but it could seem to be more like a case that maybe people are less familiar with, Rust v. Sullivan, a more recent case than Wooley v. Maynard. Federal HHS has these grants, right?

So we’ve got money going out. At least in that case, it had to do with restricting the grant recipient’s ability to talk about abortion, basically. And that’s a gross oversimplification of the case. The Supreme Court said, in that case, Rust v. Sullivan, that restriction is okay. Essentially—and again, I’m greatly oversimplifying the case for the sake of time—that’s the government’s message, and that’s the government’s money going to you. So we got Maynard on the one hand. It seems like Rust v. Sullivan, a different result, a different set of facts.

Looking at this set of facts, why is this not more like Rust v. Sullivan as opposed to Wooley v. Maynard, which is, I think, what you’re saying is compelled speech? I don’t know if I teed that up quite clearly enough, but hopefully, you at least get the gist of what I’m after.

Jonathan Scruggs:  Sure, and I think that’s one of the interesting questions in this case is, “What is the standard that you use?” And I would say one thing. Oregon actually didn’t even raise that line of cases in their response. And I think the simple reason is, in subsequent cases—one being Matal v. Tam, which involved a trademark case—and the government raised that same type of argument of like, “Hey, this is kind of a subsidy, government funding.” It’s this line of cases.

And the Supreme Court, at least in that case, it seemed at least everyone agreed that, “No. In that trademark situation, we’re not giving you any money. There’s no money here. It’s not a spinning-clause type issue.” And that’s the same. Oregon is not giving Jessica any money. It’s more like a license to do something than giving her money. So it kind of falls outside of that government-funding type scenario.

Now, I note that even in the government-funding cases, that you have case law saying you can’t compel speech. There are various different tests, like, is the requirement germane to the program? But we think we fall -- under Matal, we fall outside that line of cases. And I think that’s one reason why Oregon didn’t even raise that line of cases because there’s just no funding here to condition.

Oregon, I think, has over a thousand -- they give out a license in 1,000 different situations. You can go to their website. LLCs have to get licenses. Charities have to get licenses. So it’s a bit more of that situation and more similar to 303. That was one of the arguments made in 303 Creative. It’s like, “Hey, you have to -- to go into business, you have to get licensed by the state. Therefore, you give up your First Amendment rights,” and I don’t think that’s accurate.

But interestingly enough, Oregon, rather than raise those line of cases, raised a separate line of cases, saying, “Well, this is conduct, not speech at all, because you’re like a licensed professional, that you’re kind of like a lawyer or a doctor.” And it cited this case called Tingley v. Ferguson, which is a case my firm is involved in as well—a licensed counselor.

Can the state basically regulate what goes on in the counseling office and say, “Hey, you can provide this counseling, not that counseling.” Is that speech or is that conduct? And we don’t think that’s the right line of cases either. First of all, I think that case is wrong after the NIFLA decision.

But even taking that case as is, that case only applied to kind of a licensed professional. And, of course, Jessica isn’t a licensed parent professional, you know what I mean? Parents are just parents, and the state can’t regulate -- in that situation in Tingley, the argument was, “Well, this is a medical procedure.” That was the state’s argument.

That’s obviously nothing like that going on here because, again, the state excluded her from engaging in any type of a religious conversation. They categorically appeared upfront and said, “You have to -- you can’t go to any religious event effectively. You have to use these preferred pronouns.” Parenting involves speech, as I think all of us parents know. So we think it goes right to the core of the First Amendment.

Miles Coleman:  And I guess one factual clarification question to tease out something you said. I guess because Jessica is applying for licensure as an adoptive parent, that’s probably going to be a factually different scenario than if she was applying to serve as a foster parent, in which case, there could be some sort of per diem payment or per month payment for the child’s -- the foster child’s board, room, upkeep, and that sort of thing. So, I guess, first, am I right in understanding she’s applying for the former, not the latter?

Jonathan Scruggs:  Yes, she’s applying to be -- to adopt, right. And I think it varies whether foster families do get what type of monetary relief they get. But yeah, she is definitely applying to being an adopted family. But there have been cases involving foster situations where courts have applied what I call “standard First Amendment scrutiny,” right?

Obviously, there’s the Fulton case involving -- they’re a Catholic-adoption agency. But there’s even been cases involving individuals—a case out of Washington a year or so ago called Blais v. Hunter, which is a very similar fact pattern, except in that situation, it was foster. But again, it was the great grandparents of a child wanting to adopt that child, and they wanted to first foster and then adopt. So that’s pretty much a similar fact pattern.

And the Court there ruled -- that said Washington’s system violated free exercise. It didn’t rule on the free-speech arguments but ruled on the free-exercise arguments and said, “This system is really riddled with exceptions and exemptions, and so it lacks general application.” So we, obviously, draw that line of cases to say this is just like a licensure system. Just because you have to get your license from the state doesn’t mean you give up your First Amendment rights.

Miles Coleman:  Yeah, that makes sense. One thing, you mentioned Fulton a second ago. This was not mentioned. The money aspect, the funding aspect was not mentioned I don’t think at all in any of the Supreme Court’s opinions in Fulton.

But if you look back at the lower court opinions and certainly, certainly in the party’s briefing, there were enormous amounts of funding at issue related to Catholic Social Services licensure—millions of dollars—and all because they were one of the largest, oldest, most award-winning agencies, and everybody else was getting this funding. So I think that’s a relevant point.

I think also, even in the foster context, which again, admittedly is not what Jessica is seeking, those board payments—and this picks up on a point you made a little bit ago—those board payments have a specific purpose, and it has nothing to do with funding the parents’ speaking or funding the parents’ life outside of the role of fostering.

Those payments are for food, additional utilities, all that sort of thing, so -- which, again, I think is distinguishable from Rust, where the money in that case was for a specific purpose, and the speech restriction was intimately and unmistakably tied to that purpose. I think that’s a relevant distinction you make there, too.

Let me say a couple of questions on your free-exercise claim, and I do want to keep enough time. I know we’ve got some questions coming in. I want to save some time for those at the end. So you’ve got this free-exercise claim. Walk us through that. The state isn’t forcing her to change her beliefs. It’s not forcing her to believe something she doesn’t believe. It’s not forcing her to abstain from going to her church. Walk us through how is this impinging on her freedom to exercise her religious beliefs.

Jonathan Scruggs:  Yeah, there’s just a long line of cases going back 50—maybe even longer—years. The Supreme Court basically says, “You can’t condition a benefit in a way that violates the pre-exercise clause, whether it be the Thomas case or really Sherbert, which involved unemployment benefits.

But also, Fulton is a good example of that, right? Fulton was a contract. That was one of the arguments made at the Supreme Court like, “Hey, this is a contract. We’re not forcing you to violate your religious beliefs. This is not a restriction. You willingly enter into this contract and therefore, no harm, no foul type things.” And the Court says, “No. You can’t condition a benefit on violating your religious beliefs.” The unconstitutional conditions doctrine has similar principles going on.

And then that’s also Trinity Lutheran line of cases. In that situation, the government had a program that basically said anyone can apply to provide playground material to resurface your playgrounds. Their church applied, and they excluded. And the Supreme Court said, “No, you can’t do that.” Obviously, we’re talking about -- in one sense, we’re talking about playgrounds, but again, you just can’t condition a benefit like that in a way that violates someone’s religious beliefs.

So, at the end of the day, our ultimate argument, which brings in these equal protection principles, is Jessica is essentially seeking to have equal access to this program. Again, she’s not seeking the right to eventually adopt a particular child. She’s just asking for the right to access this program on the equal basis as others. So it goes to those kind of equal treatment principles.

Miles Coleman:  And I don’t know if you’ve made this argument, but it seems like that -- the free exercise piece of it is particularly compelling here, where Jessica’s religious beliefs and exercise are not merely tangential to the licensure she’s seeking. From the way you were kind of [inaudible 32:47], they are literally the reason she is seeking this licensure. And I’m guessing, again, based on sort of your articulation of her story, and she heard this felt this motivation, the Bible reference from James about caring for the widow and orphans and those in distress, I’m guessing that, in fact, her -- what she is doing here is itself an exercise of her religious beliefs.

Jonathan Scruggs:  No, absolutely. And I think that goes to the point of that’s true for many people, right? Many people who are serving in the foster adoption care system are religiously motivated to do so. To cut off this large population, obviously, it hurts the people of faith, but it hurts the kids at the end of the day, right?

As I noted or maybe I didn’t note, there are about 400,000 kids across America in the foster adoption system. In Oregon, I think last year it was about 8,000 kids who need a loving home. So if you exclude parents up front because of their religious beliefs about certain things, you’re hurting the kids. You’re hurting them. And again, a lot of these issues can be addressed at the matching stage.

To highlight the point, under Oregon’s theory, she’s totally excluded, so she couldn’t adopt a child at her own church. Let’s say a member of her own church wanted to put up a child for adoption, she couldn’t be eligible to adopt them, which makes little sense. Why would you exclude Jessica from adopting a child who shared her own religious beliefs on various matters?

Miles Coleman:  That, and it also has sort of a perverse effect on the children in the system and their families. To the extent that a child—which, again, that could be anyone up to 18 years old—that let’s say there’s a child who himself or herself is a devout evangelical Christian or his family of origin is and they really, really want to be placed with a like-minded foster or adoptive home, it sounds like the Oregon system is excluding the type of home that those children or those families of origin want to go to.

Jonathan Scruggs:  Yeah, exactly. I guess that makes little sense. Why treat religion on that score differently than cultural belief or some other belief, right? If you can match children and families on the back end to put them in the best place possible for these other reasons and other beliefs, you have to do that for religious beliefs.

Miles Coleman:  And I think it bears noting, too, that, in this case, Jessica is an evangelical Christian, attends a non-denominational church. But that same faith-motivating impetus is true of other faith communities as well. I know both in the Jewish tradition, in the Muslim tradition, and others, there is a religious compulsion—even an obligation—that folks can feel to serve others of their faith community and just the community more generally in that way.

Jonathan Scruggs:  Yeah, absolutely.

Miles Coleman:  And leaving those players on the bench, forcing them to stay on the bench and not letting them get in the game sure doesn’t seem like it’s in the best interest of literally anyone involved.

Jonathan Scruggs:  Yeah, it doesn’t make much sense to me. So I feel like we have a compelling case, but I’m biased. And I think our free-exercise argument is pretty compelling. I think our free-speech argument -- because, again, it goes to that point that even people with no faith will hold certain beliefs.

Do we want to empower the state to categorically exclude somebody because of some political belief, for example? We make the comparison of, well, Oregon, considered a more liberal state, might hold certain beliefs, but a conservative state might hold different beliefs and try to exclude someone, might try to, for example, say, “You can’t use pronouns consistent with a child’s gender identity, or you can’t teach children about your beliefs about CRT,” and therefore, are you categorically excluded from the foster adoption system? There has to be some type of scrutiny there to evaluate that, analyze that under the free speech clause.

Miles Coleman:  Do you have any sense—and, if you don’t, that’s fine because this would be a difficult and maybe even, to some extent, impossible question to answer. But do you have any sort of a sense, even if anecdotally, how many other people who are in Jessica’s shoes and let’s say in Oregon -- you mentioned, I think, about 8,000 kids who, whether for a day or longer, but I think if I’m hearing right, around 8,000 unique children who pass through that system at some point per year. Do you have any sense from a numbers standpoint the exclusionary effect that Oregon’s system is having at present?

Jonathan Scruggs:  I don’t have the sense of numbers. I mean, we haven’t hit discovery yet. I will say that we have been contacted by people across the country. So Oregon’s system is not the only rule like this. There’s, like I mentioned earlier, Washington had a similar rule, and they were sued and lost in federal court. There’s a similar lawsuit going on in Massachusetts right now—a somewhat similar set of facts.

So there are people across the country, and I would suggest people contact us if you’re being excluded because your faith. So it is going on. On the flip side, most states can accommodate this. Actually, in Jessica’s case, numerous states filed an amicus brief in support of our argument led by the state of Idaho.

And one of their arguments was essentially, “Hey, we don’t require this. You don’t have to,” which goes really to our strict-scrutiny analysis that there are other ways to do this. We just handle it at the matching phase. We don’t exclude people because of the religious beliefs up front. So you see that divergence of practices by states.

Miles Coleman:  Well, and I’ll tell you. It’s not risk free to accommodate religious agencies and religious believers in that system. The two cases I’ve got in South Carolina, where I represent Governor McMaster and our state Department of Social Services, it’s kind of the inverse. In this instance, the state did accommodate a religious agency who, as a matter of religious belief, wanted to work only with coreligionists. And they would gladly refer any other applicants to one of 20 plus other agencies in the state.

And as a result of that accommodation, a number of out-of-state public interest groups have come in, sued the governor, sued federal HHS, sued state DSS, claiming what I believe is a fairly implausible establishment clause claim. But we’ve had summary judgment motions pending for about six months now. We’ll find out if the Court finds them similarly implausible as I do.

Let me use that as kind of a segue, and you touched on this a second ago. I don’t know if the right analogy is sort of a mosaic of cases that’s starting to emerge, a pattern, a quilt, maybe a patchwork quilt is starting to emerge in this context over the last probably five years or so in a way that really hadn’t previously. There’s obviously a 200-year history of private and faith-based individuals and entities participating in foster and adoption work.

But really, it’s just in the last handful of years that it started to develop its own body of precedent. Fulton, we’ve talked about a little bit. I just kind of mentioned the two cases I’ve got in South Carolina. You mentioned Hunter v. Blais, which I think was in Washington state?

Jonathan Scruggs:  That’s right. It was in federal court in Washington State.

Miles Coleman:  Okay. You mentioned the Massachusetts case that was recently filed. I think that’s also in federal court. Some of your colleagues at ADF had a Northern District of New York case not too long ago. It went to the Second Circuit. And I think there’s a case in Tennessee in state court in which a Jewish couple has sued the state regarding its accommodation of a Christian agency.

So I wasn’t counting there, but that’s six or eight sort of data points, I guess. How do you see -- the case we’re here to talk about, Bates, how does that sort of fit within this mosaic pattern that we’re starting to see emerging? And then do you have any sense of what will be the next set of questions?

If Fulton was sort of the first set of questions, the licensure of an agency, and now we’re on to what we might think of as generation two questions—Blais, your case, Bates, the licensure of individuals -- and sorry, this would be a terrible trial examination. I’ve just asked you seven questions all at once, and then I’ll throw it to you. But, I guess, where do you see this going next as we look ahead to the next few years?

Jonathan Scruggs:  I mean, I think a lot of it, he -- Fulton, it would hopefully kind of resolve some of the agency issues, right? You kind of set the pattern thereof can the state accommodate, or should -- can the state exclude these religious agencies? And then I think you’re going to have a fair amount of litigation on this issue about, “What about these individuals?”

And that might take some time because I think there’s just an ongoing enormous debate about gender identity, particularly with respect to some states are taking aggressive stance on that in schools but also in foster adoption care. So I think it’s just going to take some time for those issues to percolate through the system, as you noted, whether it be, Blais.

There’s another case that went to the Third Circuit that, again, ruled—it was on a motion to dismiss—but ruled for the foster parents who are excluded because of their religious beliefs about sexual orientation and gender identity. Their foster licenses were revoked.

So I think you’ve got, obviously, a lot of political pressures on this issue to enforce some left-leaning policies on pronouns, these types of things. And that’s going to work itself out. And, of course, even though we’re not talking about it, it’s similar. It’s working itself out in the CPS context and the custody context. That’s not something we necessarily directly litigate too much, but it’s at stake there.

So I think it’s an interesting question of what should the standard be in this individual adoption foster context because, as I noted, there’s really not that much case law—at least in the federal courts—on this issue, besides the cases we’ve mentioned, which is not that much.

Miles Coleman:  Let me ask you a couple of questions we’ve had come in through the Q&A down at the bottom of the screen and also use this as a reminder to the audience that if you’ve got questions, you can go down and click on the little Q&A and submit them. And I think we’ve got time for a couple here.

All right. “Would the analysis of this situation be the same if the plaintiff’s views were simply based on nonreligious moral scruples rather than on religious values?” Stated differently, “Is the religious connection indispensable to your theory of the case and your claims?”

Jonathan Scruggs:  Well, it’s definitely indispensable to our free-exercise claim, which makes sense, but not to our free-speech claim or compelled-association claim. And I think that’s one of the reasons why this claim is -- common-sense claim makes sense because the state could, in theory, exclude someone just because they disagree with their political beliefs or want to compel certain political beliefs. And that makes just zero sense, right?

I think intuitively, it’s like, “Why would you exclude someone.” Let’s say someone was a communist. Should the government be able to exclude them from this program for holding those beliefs? Or should they say, “Hey, you have to take your child to whatever political event, religious event, whatever.” Someone might object to that.

And so in no ways is our speech claims limited. It is broader, and we think in a good way because the state shouldn’t have this power to exclude anybody categorically like this because of these certain beliefs.

Now, one point, what I want to raise is -- to highlight some of the themes here is Oregon. One of their arguments is, “Well, we need to categorically exclude you because although you want to raise a child who’s under the age of nine, we don’t know which child will eventually identify as LGBT. It’s unknown. In theory, some child might eventually identify as LGBT down the road.”

Of course, that’s also true for religion, right? People convert to different religions all the time. But again, our argument is that doesn’t satisfy strict scrutiny, right? Those are speculative things. And even if you look in the custody context, it’s actually interesting.

In the custody context, they’ve evaluated these things, for example, a Jehovah’s Witness who wants to take custody of your child, who they won’t give blood transfusions. And so you have this interesting intersection of how does the Court handle that, right? And even in that situation, the Court will say, “Hey, I’m not going to categorically remove custody from you or deny you custody for your religious beliefs on that.”

You have to essentially show strict scrutiny and show like, “Hey, there’s a particular child who’s suffering from an injury that might make them susceptible, for example, to having a blood transfusion, or we’ll wait for a specific situation that it raises.” But it goes to the point of highlighting, I think, Oregon has really gone too far because they categorically excluded someone up front rather than wait for a situation to come up in the back end or place a child on the back end.

Most of these situations are governed by the best interests of the child. Well, how do we know what the best interest of the child is when we don’t know who the child is because Jessica is excluded from adopting any child? So I think that’s just an interesting parallel there.

Miles Coleman:  Let me ask another one from the Q&A. I think you said early on that, at one point, Jessica had looked at international adoption. It was prohibitively expensive, and there may have been other barriers there. You mentioned, too, that there are other ways, going through a private agency, for example, in Oregon, that one can seek to adopt that don’t require you to interact directly with the state in the way that she is.

What’s your response to the argument that, “Well, she had alternative avenues that she could have pursued? Why does it have to be this one? And what gives her the right to force herself on the state in this way?”

Jonathan Scruggs:  Yeah, and it goes to that point of it’s kind of like a tax in the sense of even when you go through that independent adoption agency, they have higher fees. They put fees on there, typically, that the state doesn’t. And they’re also much farther away from Jessica’s home where she is. She lives in a rural part of Oregon, so there are not many good options around her. So she has this kinds of monetary and practical barriers.

The state can’t argue, “Hey, you can get your fire and police services elsewhere. Therefore, we can condition this benefit on your religious beliefs, so no harm, no foul.” That’s just not how it works.

But it does go to the point, again, highlighting -- what we’ve noted is, at the end of the day, the state still has to approve those independent adoption agencies. It goes to the independent adoption, but the state has kind of the final say at the end. So you’re still subject to the same rules as well.

Miles Coleman:  Okay. One thing I’ve learned as a litigator is that whenever you’re possible -- whenever it’s possible to use fewer pages or fewer words than the Court allows you, that’s always well received by the audience. And it may be true here that whenever it’s possible to use a fewer minutes than possible, our audience might appreciate that too.

We’ve got a little bit of time left. Let me just ask you this, I guess, as a final question. So we’ve kind of talked through the facts of this, the claims made, some of the legal issues, the relief sought. I guess if you had two minutes for at the end of your preliminary injunction argument or to kind of pitch your case, what’s your 92nd or 2-minute closing argument on this that we can take away?

Jonathan Scruggs:  Yeah. And that pitch is really one I’ve been making and trying to make all along. And it’s the idea of there’s a win-win here for everybody. There’s a win-win for people, for the kids, for Jessica, and the people who share her beliefs, and even for those who are part of the LGBT community who share different beliefs, whatever that is, not to exclude people from the system up front because they hold certain views but to allow them to go through the process and match them at the back end with the child who works best in their situation.

That way, you help the child. You get them. You put them in a loving home. You’re not violating anyone’s constitutional rights, anyone’s right to free speech, religious liberty. I think that’s just a win-win for everybody. And that’s what helps the kids and it’s what helps the applicants. It’s really what’s the best interest of the child.

Miles Coleman:  All right, you’ve persuaded me. Thanks for your time. Chayila, I don’t know if you have any closing remarks for us.

Chayila Kleist:  I will jump in here. Thank you both on behalf of myself and The Federalist Society for joining us today. We appreciate you taking a chunk of your day and gifting us with your time. Thank you also to our audience for joining and participating.

 

We welcome listener feedback by email at [email protected]. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events. With that, thank you all for joining us today. We are adjourned.

 

 

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