Denied service by state-funded Christian group, Jewish foster parents challenge controversial Tennessee law

Different visions of ‘religious liberty’ collide

  photo  Americans United for Separation of Church and State / Knox County couple Elizabeth and Gabriel Rutan-Ram allege a publicly-funded Christian child-placement agency refused to serve them because they were Jews — and that a new Tennessee law permitting the policy violates their constitutional rights.
 
 

After learning they could not have a biological child, Elizabeth and Gabriel Rutan-Ram, of Knox County, sought to adopt a boy in Florida.

The couple struggled to find a local agency to provide the necessary cross-state certification. But eventually they were referred to and signed up with the Holston United Methodist Home for Children in Greeneville, Tennessee, which contracted with the Tennessee Department of Children's Services in part to run training classes and conduct home-studies for prospective parents.

The couple's arrangement with the institution did not last long. According to court documents, the day the couple was scheduled to begin their initial class in early 2021, they received a surprising email: The Holston Home would not serve them after all because the Jewish couple did not share its belief system.

The policy appears to have been consistent with a law recently passed in Tennessee, among several other states. The law ensured that faith-based foster and adoption-placement institutions can, on the basis of a religious objection, deny service to potential clients -- and could not lose access to public funds as a result.

In a lawsuit that pits different visions of religious liberty against one another and raises many of the same questions swirling today at the highest levels of American politics, the Rutan-Rams claimed that Tennessee law violates the religious freedom and equal protection guarantees of the state constitution.

Whether their core claims will ever be litigated remains to be seen, however. In the summer of 2022, trial court judges told the couple and their fellow plaintiffs they lacked the right to sue. With an initial round of legal briefs for their appeal now filed, oral arguments will likely take place in early 2023.

'Belief system'

Melissa Russell's January 21, 2021, email to Elizabeth Rutan-Ram was apologetic in nature.

"I have enjoyed speaking with you about our services and your adoption journey," wrote the adoption specialist for the Holston Home. "Unfortunately, as a Christian organization, our executive team made the decision several years ago to only provide adoption services to prospective adoptive families that share our belief system in order to avoid conflicts or delays with future service delivery."

According to their lawsuit, the couple, to which the Methodist ministry had initially offered its services, was hurt and shocked. The organization's website did not at the time disclose that it did not serve Jews, the suit said, and although Russell referred the Rutan-Rams to other agencies that might help them, the suit said the couple couldn't find another one in the vicinity of Knox County that would provide them the services required to adopt an out-of-state child. Ultimately, the suit said, the couple was not able to adopt the boy from Florida.

The Rutan-Rams went on to apply to serve as foster parents for children in Tennessee custody -- a simpler process, the lawsuit said -- and certified directly with the state's Department of Children's Services. The couple fostered a teenage girl, who the suit said they would adopt if the state deems it in her interest following a review in the coming months.

Controversial law

The adoption bill Tennessee Gov. Bill Lee signed into law in January of 2020 did not, strictly speaking, favor any particular faith. It was, however, a priority of prominent Christian conservative activists, and closely resembled those passed in several state legislatures around the same period, according to an analysis by the Center for Public Integrity. Supporters backed it in the name of religious freedom and hoped to more explicitly protect publicly-funded child-placement institutions that wished, for faith-based reasons, to refuse service to prospective LGBTQ parents.

The law's advocates didn't deny that it would additionally shield groups that refused service to people of different faiths. Asked by a fellow lawmaker, for example, if the policy would protect an Episcopalian child-placing agency refusing to serve a Muslim family, a sponsor of the bill, Sen. Paul Rose, R-Covington, said that although he would not personally support that practice, it would indeed be legal under the new law; in fact, he said, it would have already been permitted.

That last point is in dispute. Consistent with Rose's analysis, the state has argued in responses to the lawsuit that the decades-old Tennessee Human Rights Act -- which prohibits groups that receive public funds from discriminating based on a variety of grounds, including religion -- does not apply to child-placement agencies. It also argued that to deny public contracts with Hoston Home would likely violate the Tennessee Religious Freedom Restoration Act by burdening the home's religious mission.

But according to Alex Luchenitser, a lawyer who represents the Rutan-Rams, the idea that those statutes preceding the 2020 adoption law allowed publicly-funded religious institutions to legally deny service to protected groups is "just wrong."

He cited in part a contract between Holston Home and the state dated to 2017, which was reviewed by the Chattanooga Times Free Press and did seem to uphold a nondiscrimination standard -- though it is not clear if it was enforced. The contract prohibited Holston Home from excluding people from its services on the basis of creed, religion, sex and other classifications protected by state or federal law.

Still, if the Tennessee legal landscape prior to the 2020 law was in question, the significance of the adoption law itself was not, and critics honed on the fact that its protections explicitly extended to recipients of public money.

"It is shocking that the state of Tennessee has passed a bill that openly sanctions discrimination against Jews, LGBTQ people and others," the Anti-Defamation League's Southern Division said in a statement at the time. "Allowing a taxpayer-funded child placement agency to discriminate is outrageous."

Nationwide, litigation over the adoption laws has had mixed results. A Michigan court in 2019 resolved a same-sex couple's lawsuit by ruling that faith-based state-funded adoption agencies can't turn away LGBTQ couples or others because of religious objections.

Meanwhile, the conservative majority on the U.S. Supreme Court has increasingly emphasized the rights of religious organizations to choose who they serve, said John Vile, a free speech scholar at Middle Tennessee State University, in an email.

In one unanimous 2021 ruling, the high court found that the city of Philadelphia could not end its longstanding contract with a Catholic organization just because the organization refused, for religious reasons, to certify LBGTQ couples as foster families. Some conservative justices argued the court decision should have been far more expansive, and Luchenitser said the ruling was so narrow in scope that its logic does not apply in the case of the Tennessee adoption law.

Supporters of that law argue criticism against it is overblown, and that those denied service are free to seek out child-placement agencies willing to work with them, including those run by the state itself.

That sort of argument, long marshaled to defend discrimination in many forms, has been "uniformly rejected by the courts and by society," Luchenitser said by phone Thursday. If it were accepted, Jews such as the Rutan-Rams would have an inferior set of options, he said, adding that the stigma of discrimination also makes them feel inferior -- a harm which he said is accentuated by the state's apparent support of the discrimination, and which is traditionally recognized by courts.

The suit

After being rejected by Holston Home, the Rutan-Rams contacted Americans United for the Separation of Church and State, according to Luchenitser, an associate legal director for the Washington, D.C.-based advocacy organization.

A Nov. 3, 2021, letter sent by the couple's legal counsel asked the state "to end religious discrimination by Holston in state-funded programming" but did not receive a substantive response, the suit said.

Meanwhile, the foster home was preparing legal action of its own. On Dec. 2, 2021, Holston Home filed a lawsuit, recently itself dismissed as a result of standing issues, that challenged a rule prohibiting discrimination on the basis of religion and sexual orientation, among other things, in programs funded by the U.S. Department of Health and Human Services.

According to court records, during the Trump administration, the federal agency had not been enforcing the rule and had allowed leeway to some government-funded religious institutions that sought exceptions. The Biden administration regulated things differently, however, and the Holston Home argued the rule was arbitrary and violated its constitutional right to the free exercise of religion.

On Jan. 19, 2022, the Rutan-Rams named the Tennessee Department of Children's Services in a suit arguing that the state's 2020 adoption law violated their religious freedom.

The lawsuit was heard under a new Tennessee law that requires special three-judge panels to hear certain constitutional challenges. The process was put in place by conservative lawmakers who objected to many such cases being heard by more liberal judges in the state capital of Nashville, where such laws are passed. The three-judge panels must contain judges from each of the state's three regions -- east, middle and west.

The couple, and other plaintiffs, including several religious leaders, asserted injury as taxpayers, objecting, the suit said, to the use of public money to fund an agency that discriminates based on religion.

The Rutan-Rams would like to foster and potentially adopt an additional child, the lawsuit said. The state, however, argued that the couple, who were after all able to foster a first child, now bases its claims on a string of hypotheticals that they may experience harm in the future -- if and when they approach and are again rejected by a private child-placement agency.

Luchenitser said the Rutan-Rams' limited options for foster services and the stigmatization they face are "far from a hypothetical problem."

Two of three trial court judges agreed with the state that the suit should not proceed. The Nashville judge on the panel was outvoted by the two from the east and west parts of the state.

The reasoning of the two judges is now under review in the Tennessee Court of Appeals.

Contact Andrew Schwartz at aschwartz@timesfreepress.com or 423-757-6431.

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