South Dakota passes "religious liberty" law allowing adoption agencies to discriminate against same-sex couples

States like Texas and Alabama are considering similar legislation targeting LGBT families

Published March 22, 2017 10:58PM (EDT)

 (<a href=''>beijersbergen</a> via <a href=''>Shutterstock</a>)
(beijersbergen via Shutterstock)

No one told Billy Mawhiney how difficult the adoption process would be.

Mawhiney, a 38-year-old cooking instructor, first signed up to serve as a foster parent with his partner three years ago. In order to be eligible to adopt or serve as a foster parent for a child, prospects must enroll in two months of intensive classes. The couple had to submit fingerprints to local authorities and the FBI. Mawhiney and his partner submitted the results of background checks and four recommendation letters from friends and co-workers who could testify to their fitness as parents. The agency requested that the men make sure their home was completely safe and secure, including fastening their bookshelves to the wall.

“We had to explain every speeding ticket,” Mawhiney said. “We did this because we felt like fostering and adopting kids was our way to enhance our family and give back to our community.”

But if the adoption process is already taxing and intensive by design, it’s about to become even harder for same-sex couples following the passage of a new law in South Dakota which LGBT advocates argue could allow adoption agencies to turn away same-sex couples. Senate Bill 149 was signed into law this month by Gov. Dennis Daugaard after passing the state’s House of Representatives by a 43-to-20 vote and its Senate by a 19-vote margin. SB 149 prevents the state from taking action — in the form of taxes or penalties — against agencies that discriminate on the basis of their “sincerely-held religious belief or moral conviction.”

While SB 149 doesn't specifically reference the LGBT community, Daugaard told the Associated Press that he was concerned that members of a “protected class” could sue adoption agencies if their application were denied. Daugaard’s office didn’t return multiple requests for comment, and the governor has yet to put out a statement since the bill’s passage.

Sen. Alan Solano, one of the co-sponsors of the legislation, was concerned about the impact that the Supreme Court’s decision to recognize the marriage rights of same-sex couples would have on the ability of faith-based adoption agencies to operate in South Dakota. Following the high court's Obergefell v. Hodges ruling in 2015, centers in California, Illinois and Massachusetts, as well as Washington, D.C., announced they would close up shop — because they couldn’t in good conscience place children in households headed by a same-sex couple.

“I want to be able to give these organizations and their boards confidence that they have protection so they don't just preemptively say we are going to get out of the adoption business,” Solano told the Rapid City Journal.

But LGBT groups warn that the bill, which is extremely broad in scope, could have unintended consequences. The Human Rights Campaign argued in a statement that in addition to letting agencies deny adoption services to same-sex couples, SB 149 could permit discrimination against “interfaith couples, single parents, married couples in which one prospective parent has previously been divorced, or other parents to whom the agency has a purported religious objection.”

To Eunice Rho, the advocacy and policy counsel for the American Civil Liberties Union, SB 149 is chiefly aimed at same-sex couples. “Its implications could be broader, but it is certainly motivated by a desire to discriminate against LGBT people,” she said.

South Dakota’s legislation is just the most recent attempt to limit the adoption rights of same-sex couples. States like North Dakota, Virginia, and Michigan have introduced similar laws targeting families of LGBT couples in recent years, while Texas and Alabama are currently considering legislation similar to SB 149. In February the Alabama Senate approved a bill that would give adoption agencies, such as Catholic Social Serviceslicense to discriminateCatholic Social Services helped write the South Dakota legislation.

The Catholic Social Services of Rapid City didn’t provide a statement in response to a request for comment. When asked for an interview, a representative for the organization said he would “pray about it.”

Zach Nistler, an organizer for Equality South Dakota, warned that SB 149 could be a harbinger of further legislative efforts to target same-sex couples, even on the national level. Nistler claimed that people in his state are frequently on the “front lines” when it comes to fighting anti-LGBT laws. Last year South Dakota was the first state to consider legislation that would restrict transgender students from using bathrooms that corresponded with their gender identity. Just weeks after Gov. Daugaard vetoed House Bill 1008, North Carolina passed a similar measure.

“We’re the training team for major league sports,” Nistler said. “Time and time again, South Dakota is the place where discrimination starts.”

But if Daugaard shot down the previous attempt to introduce legislation that advocates warned could harm the LGBT community, what was the difference this time around? In February 2016 critics of the legislation claimed that the bill’s passage would jeopardize South Dakota’s robust tourism industry. Indeed the state took in nearly $2 billion from tourists flocking there in 2014 to visit historic sites like Mount Rushmore, Deadwood and the Badlands. LGBT people and their allies called for a boycott of South Dakota were HB 1008 to become law, saying that they would vacation elsewhere.

But in the case of the adoption law, there wasn’t nearly the same type of outcry, either from prospective visitor or businesses. In contrast, major corporations like Apple, Google and Microsoft led the charge last year against North Carolina's House Bill 2, while the National Basketball Association stated that North Carolina would forfeit its eligibility to host the All-Star Game until the law was repealed.

But Rachel Rubin, the deputy director for Out & Equal Workplace Advocates, explained that states like South Dakota may not have as much bargaining power as, say, North Carolina or Georgia. Last year Gov. Nathan Deal vetoed a “religious liberty” bill in the Peach State.

“We know in this country what a big role corporations are allowed to play in helping drive our country toward equality,” Rubin said. “But there aren’t as many Fortune 500 companies based in South Dakota as there are in some of those other states where you see success in shutting these bills down. The Walt Disney Company does a ton of filming in Georgia — all the Marvel movies are made there. That was a hard line in the sand that Disney took, and the law didn’t pass.”

The truth is, however, that Rubin was underestimating the problem: South Dakota didn't have a single Fortune 500 company in 2015. Neither did red states like Montana, Wyoming, West Virginia, Mississippi, North Dakota and Alaska.

If anti-LGBT adoption laws continue to be enacted across the U.S., same-sex couples in such states will be extremely vulnerable to discrimination, but Rho said it's the children in foster and adoption networks that would be the most harmed. The Human Rights Campaign has asserted that 1,174 children in South Dakota are awaiting placement through the foster care system. The state should be doing everything it can to invite more couples to become involved and offer these children a home, rather than discouraging foster parenting or adoption.

“Some of these children have disabilities or learning disabilities,” Rho said. “Many of them are older and have been neglected and abused. The desire to take these opportunities away from kids is extremely cruel.”

Mawhiney and his partner were able to start foster parenting a child two years ago and now are in the process of adopting him, but the passage of SB 149 will affect their ability to further expand their family. A great number of the adoption agencies in South Dakota are faith based, including Lutheran Social Services, Bethany Christian Services and the New Horizons Adoption Agency. But Mawhiney, who lives in Sioux Falls, said he won’t let this legislation stop him from providing a loving home to children who need it.

“It’s enhanced every aspect of my life to see my child grow up right in front of me, to be at swim lessons or get that hug and a goodnight kiss at the end of the day,” Mawhiney said. “You share your love with your kids every single day.”

By Nico Lang