Pushing back against the state

LINDSAY MAST, HOST: It’s Thursday the 11th of July, 2024. This is WORLD Radio and we are so glad to have you along with us today. Good morning, I’m Lindsay Mast.

PAUL BUTLER, HOST: And I’m Paul Butler.

First up on The World and Everything in It: Religious liberties out west.

Two cases currently in federal court in the state of Oregon raise the stakes for Christians living out their faith, both in the workplace and in foster care.

Here’s WORLD’s Mary Reichard talking about these cases with legal reporter Steve West.

MARY REICHARD: Steve, good morning.

STEVE WEST: Good morning, Mary.

REICHARD: Steve, we talked about the story of Jessica Bates back in May 2023. She’s a widow with five children, and she wanted to adopt more children out of foster care. Bates went through the application process and underwent a home study two years ago. But the state decided she was not eligible to adopt, because she was unwilling to do the state’s bidding if a child expressed gender confusion.

Bates sued and Alliance Defending Freedom represents her. What has happened since filing her lawsuit last Spring?

WEST: You know, Bates wanted a court order to block the state from excluding her from the state's foster care program that's called a preliminary injunction. After all, she met all the qualifications and was willing to accept and love any child she said, as a Christian, though she could not do some of the things the state considered as support for the child, like using pronouns that didn't match the child's sex, or taking the child to a Pride Parade, or letting the child dress ss the opposite sex. Last November, a federal judge ruled against her, and then she appealed, and on Tuesday, a three judge panel of the 9th U.S. Circuit Court of Appeals heard the case,

REICHARD: And you listened to that. What were some of the highlights from oral arguments?

WEST: Well after the hearing, that outcome, the outcome of the hearing is far from clear. Circuit Judge Richard Clifton questioned what right Bates had to dictate how she would care for a foster child who is, after all, in the state's custody. At one point, he even suggested the lawsuit was “contrived.” Circuit Judge Michael Hawkins also didn't seem enthused about Bates’ position. These two judges were appointed by George W. Bush and Bill Clinton, respectively, but it was a Donald Trump appointee that really drilled down on the issues. Circuit Judge Daniel Bress peppered the state's attorney with questions about his argument that the state's policy regulated conduct, not speech, and so was not subject to the First Amendment. In this exchange, he asked about pamphlets that were provided to Bates during the foster care training she received.

BRESS: But it's I mean, reading the pamphlets, it seems sort of central, right? The pronouns, right? The use of specific pronouns, the strong suggestion to use particular flags or other kinds of things to educate and show children, examples of positive experiences of people who have, you know, similar gender and sexual identity, right? All of this is all all speech-related. It's all speech.

Bress went on to suggest that the state's policy is not neutral, but discriminates against people with Bates religious convictions. Since the state was providing guidelines for how parents should talk about gender and sexuality with foster children.

BRESS: Doesn't it seem clear that the people who are most likely to have difficulty with this policy, or people who have a certain religious viewpoint about sexual orientation…?

THOENNES: I don't, I don't think I agree with that, Your Honor. But even if that's true in the abstract, as long as the rule is neutral and generally applicable, there just isn't a free exercise problem, of course, so long as we satisfy rational basis review.

BRESS: Right, but I guess it gets to the question of whether the rule is neutral, right?

REICHARD: Steve, you want to predict the outcome based on what you heard. I know it's always tricky to do that.

WEST: It is always tricky, and yet here I predict a two one ruling in favor of the state teeing the case up for a possible review by the full 9th Circuit Court of Appeals, or perhaps by the Supreme Court. Bress, who is a Trump appointee, is most likely to go with Bates, as he clearly felt that this policy fell disproportionately on religious people. I think Bates, Attorney Jonathan Scruggs really got to what's at stake in his closing remarks.

SCRUGGS: Just wrapping up Your Honor, I want to acknowledge that this is a controversial topic. There's people of good faith on both sides, but we don't have to get foster care kids caught in the middle. Oregon can comply with the Constitution, achieve its goals and allow Ms. Bates to provide a loving home for a child who desperately needs it.

REICHARD: All right, turning now to another controversial religious liberties case, what can you tell us about the youth 71 five ministries in Medford, Oregon.

WEST: This is a Christ centered youth mentoring program. It's been operating for over 60 years in Oregon. The staff mentor young people from all backgrounds and religions, providing vocational training and recreational activities, and they go to wherever the kids are, group homes, detention centers or the ministry's own centers. They also received grants from the state's Department of Education, including one in July of last year of $400,000 that's the one that three months later, the state pulled saying the ministry was disqualified because of its hiring practices, meaning the ministry's requirement that staff and volunteers sign a statement of faith. It wasn't anything new, the same language as always.

REICHARD: So the ministry takes its case to court, and a federal judge rules against it. Now it’s asking the 9th Circuit Court of Appeals to weigh in. Steve, what was the lower court’s rationale for siding with the state?

WEST: The judge said that the denial of funding had nothing to do with the ministry's religious character, but was because it discriminates in its employment practices. The judge also rejected the ministry's religious autonomy argument. He noted that it was an affirmative defense against suit by a disgruntled church employee, not a standalone right that can be wielded against the state agency. In other words, you can use it defensively when you're sued, but not offensively when you're the one suing.

REICHARD: Steve I’m curious as to how recent Supreme Court precedent affects these cases?

WEST: There's a line of cases ruled on by the Supreme Court since 2017 that hold that the government violates the Free Exercise Clause when it excludes religious persons or organizations from otherwise available public benefits because of their religious character, activity or exercise, and the court has never limited the religious autonomy doctrine. It's a rule that prevents courts from second guessing the doctrines of religious organizations or their governance, including who they can hire or fire. So you add that to the fact that this appeals court last year protected the right of a chapter of Fellowship of Christian Athletes in San Jose to require its student leaders to sign a statement of faith. So with all of that, I think there strong precedent that should help on appeal.

REICHARD: Steve West is a legal reporter for WORLD. Thanks so much for this report.

WEST: Thanks for having me, Mary.

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