The controversial measure passed into law last month violates the separation of church and state, legal experts say.
A new Texas law meant to shield child welfare providers who deny services based on religious beliefs could strap the state with more legal problems than the providers ever faced, critics say.
Governor Greg Abbott signed House Bill 3859 into law last month. The measure, filed by Wichita Falls Republican James Frank, prohibits the state from taking any “adverse actions” against child welfare providers who are acting on “sincerely held religious beliefs.” Critics say the broadly written law would allow foster parents and organizations to refuse to place children with same-sex or non-Christian foster or adoptive parents. Legal experts say the law, which takes effect September 1, would also give foster parents and organizations license to refuse vaccines, deny contraception or send children to anti-LGBT conversion therapy.
“HB 3859 is misguided and unconstitutional,” wrote nine Texas law professors at the end of the regular session in an open letter to lawmakers. “[The law] is not only a solution in search of a problem, it creates substantial constitutional problems insofar as it reaches too broadly in an effort to protect religious liberty.”
Those concerns were echoed by civil rights groups across the country, including the ACLU, Human Rights Campaign and Lambda Legal. They all say the law violates the First Amendment prohibition of state-sponsored religion, also known as the Establishment Clause. Jennifer Pizer, the law and policy director for Lambda Legal, said the organization is contacting foster or adoptive children and families about the law so they can report discrimination. Pizer said a lawsuit against Texas would likely be filed after the law takes effect in a few months and once a potential plaintiff’s rights have been violated.
“Courts are particularly sensitive to Establishment Clause concerns when children are involved, as they are assumed to be especially susceptible to religious coercion,” the legal experts wrote in the letter, citing a federal case that found Michigan violated the First Amendment by contracting with a faith-based residential care facility for “troubled youth,” despite the provision that allowed kids to opt out of religious programming.
Similar to the now-overturned Michigan law, HB 3859 requires nearby secondary providers to offer services that faith-based organizations may refuse, but doesn’t spell out the service referral process and puts much of the onus on children to request them. Civil liberties advocates fear that foster youth may be coerced into certain practices or kept from others simply because they aren’t advised of their rights or do not understand the legal process.
Support for the bill comes from faith-based providers, which Frank says makes up about a quarter of child welfare agencies in Texas, like Catholic Charities and Buckner Children and Family Services. Those organizations say lawsuits from civil rights groups impede their mission to help vulnerable children. Catholic Charities has already shuttered its foster care operations in Texas in response to litigation in other states, and Buckner had a moratorium on expanding until the law was signed. Neither group has faced a lawsuit in Texas.
“The children in the Texas child welfare system deserve the best we have to offer, yet without conscience protection, it is the children and families in crisis who suffer,” said Jennifer Allmon, executive director of the Texas Conference of Catholic Bishops. “Conscience protections allow our faith-based providers to continue to be a safe and loving refuge for children in crisis and to accompany them on their journey to healing and wholeness, breaking the cycle of abuse and neglect one child at a time.”
Last month, California Attorney General Xavier Becerra banned state-sponsored travel to Texas in response to the “prejudicial law.”
Multiple requests for comment sent to the office of Attorney General Ken Paxton were not returned, but representatives of the office spoke in support of the bill during committee hearings.
Brantley Starr, deputy first assistant attorney general for Texas, testified before the House State Affairs Committee in March, saying that because the bill is so similar to the Texas Religious Freedom Restoration Act of 1999 (RFRA) — which prevents government agencies from “substantially burdening” the free exercise of religion — its constitutionality has already been proven. Starr said HB 3859 is primarily a “status quo bill,” meant to streamline Texas RFRA cases, which can take years to fully litigate. The Attorney General’s office did not respond to multiple requests to further comment on the bill.
But civil rights advocates still aren’t convinced. While Texas’ RFRA includes provisions to safeguard civil rights and prevent discrimination, HB 3859 provides fewer protections, and still allows providers to discriminate based on sexual orientation, gender identity or religion, as long as they are doing that based on “sincerely held religious beliefs.”
“The bill really is a recipe for discrimination,” Pizer said.
The Freedom From Religion Foundation (FFRF), a nonprofit that focuses on litigating the separation of church and state throughout the United States, is also keeping an eye on the potential for lawsuits. The foundation has two pending lawsuits against Texas for other alleged First Amendment violations, said staff attorney Sam Grover.
Last year, the Dallas Morning News reported that Texas has already spent more than $7 million fighting the 2015 class-action lawsuit that highlighted the state’s foster care crisis. Since the suit was filed in 2011, 1,138 Texas have children have died as a result of abuse or neglect.
“This idea that religious freedom allows people to impose their religious beliefs on others is untenable,” Grover said. “The more the Legislature pushes this idea, the more legal problems the state will have.”