Mississippi Adoption Agencies May be Able to Deny Placement of Child Based on Premarital Sex

Remember when businesses could refuse service to African-Americans? Mississippi has just passed a religious freedom bill that puts a halt to any progression made in the LGBT community since Obergrfell v. Hodges and it sure reminds me of when blacks were segregated from whites. Will we ever learn from past mistakes?

The bill, known as the “Protecting Freedom of Conscience from Government Discrimination Act”, essentially allows both public and state employees to discriminate against anyone they believe doesn’t align with their religious beliefs. House Speaker Phillip Gunn stated he wrote the bill in response to the jailing of Kim Davis for refusing to issue marriage licenses to same-sex couples after Obergrfell.

Upon signing the bill, Governor Phil Bryant stated it was, “to protect sincerely held religious beliefs and moral convictions…from discriminatory action by state government,” and that the bill “merely reinforces” existing religious freedom rights without limiting any constitutional rights.

The LGBT community will take the biggest hit from this bill, but many are overlooking an even smaller portion of the bill that focuses on adoption agencies. Essentially, adoption agencies, whether public or private, will be able to discriminate against potential adopting parents if they believe those parents are having premarital sex. Say what?

A Closer Look at the Bill

The actual text of the bill states:

“Section 2. The Sincerely held religious beliefs or moral convictions protected by this act are the belief or conviction that:

(a) Marriage is or should be recognized as the union of one man and one woman;

(b) Sexual relations are properly reserved to such a marriage; and

(c) Male (man) and female (woman) refer to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

Now on it’s face, it looks like the State of Mississippi is promoting, or rather supporting, this belief. What the bill actually says is that the “state government shall not take any discriminatory action against a religious organization…” that promotes or does business based upon personal and religious beliefs.

Discriminatory action on behalf of the government means the government cannot change tax treatment, take away previously allowed rights, contracts and benefits, fine, charge fees, or refuse to hire, among many others, anyone that refuses service based upon their religious beliefs. The bill isn’t necessarily promoting this belief so much as they are granting protection from governmental backlash.

Still seems a bit backwards though doesn’t it? The bill further reads:

“Section 3. (2) The state government shall not take any discriminatory action against a religious organization that advertises, provides or facilitates adoption or foster care, wholly or partially on the basis that such organization has provided or declined to provide any adoption or foster care service, or related service, based upon or in a manner consistent with a sincerely held religious belief or moral conviction…”

It’s broadly written, which means adoption agencies could essentially deny placement of a child on the basis of the agencies religious beliefs that sex is reserved for married couples. Is this going to be on a pre-adoption questionnaire?  Asking whether someone is having sex outside of marriage would be a violation of the right to privacy, but the agencies could just assume certain people are engaging in premarital sex.  Sounds a whole lot like religious discrimination, doesn’t it? Let’s look at an example to see how this could actually play out.

• Bill and Cindy want to adopt a child. Both have good jobs and would be excellent parents, however they don’t believe in marriage and, instead, live together as domestic partners.

A “religious organization” under the bill includes a “religious group, corporation, association, school or educational institution, ministry, order, society or similar entity…” Adoption agencies are run by either public (state) or private entities, which means privately held companies run by religious organizations could refuse their services to anyone they want under the freedom of religion umbrella.

• An adoption agency with firmly religious roots finds out that Bill and Cindy are not married and since they strongly believe sexual relations are reserved for married couples, they choose to deny placing a child with them.

The Bill Might Not Actually Violate Any Rights

The Federal Civil Rights Act of 1964 prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin.

A couple’s ability to parent should not rest solely on the basis of religion or marriage. However, while the act itself of discriminating based upon religious beliefs is a violation of the Act, maybe even a violation of the right to privacy, the text of the bill itself may not be violating any rights because it only prohibits the government from taking governmental action against those that choose to discriminate, rather than having the government itself be the discriminating party.

Whether the application of the bill plays out as written is a different story. If applied discriminatorily, it won’t matter how the text of the bill is written.  That’s going to be a key distinction when this bill is inevitably challenged.  Those that the bill affects will have to take suit up with the individuals discriminating, rather than with the government.