On Monday, the Texas legislature passed HB 3859, a bill affording private child welfare service providers with religious liberty protections. Like with many religious freedom issues today, supporters and opponents once again fight over the extent to which state government may offer protections for the free exercise of religion (or, as it is commonly called–”play in the joints”–between the mandate of the Free Exercise Clause and the prohibition of the Establishment Clause).

Should Texas Governor Abbott sign HB 3859, the law would prohibit governmental authorities from taking action against social service providers who decline services that conflict with the provider’s “sincerely held religious beliefs.” Opponents are urging the Governor to veto this “abhorrent” bill, which they argue “target[s] transgender youth and youth in foster care.”

The bill expressly protects agencies who place children with providers that give children a religious education and agencies that decline to provide, facilitate, or refer a person for abortions, contraceptives, or services that are “potentially abortion-inducing.” Notably, the bill also requires providers offer the person seeking the declined services with information and referrals to other licensed providers who offer the denied services.

The bill, in my opinion, seems to offer some important protections for social service providers who may otherwise be forced out of offering important and much-needed services due to their religious beliefs regarding marriage and family.

State statutory protections for free exercise, like HB 3859, are particularly essential today in light of the Supreme Court’s Free Exercise doctrine and changing cultural perspectives. As a constitutional matter, in Employment Division v. Smith, the Court held that the Free Exercise Clause of the First Amendment does not permit religious exemptions from neutral and generally applicable laws, leaving “conscientious objectors” at the mercy of legislative majorities.

In response to Smith‘s controversial holding, Congress enacted the Religious Freedom Restoration Act in 1993, which essentially reinstated strict scrutiny for Free Exercise Claims (permitting legislation to burden religious beliefs when the government acts in “furtherance of a compelling government interest” and only if the legislation employs the least restrictive means of furthering that interest). However, in City of Boerne v. Flores, the Court held the federal Religious Freedom Restoration Act unconstitutional as applied to states. Consequently, religious objectors to neutral and generally applicable state laws must rely on either state constitutional protections or state statutory protections for free exercise exemptions.

As a cultural matter, Americans are particularly divided when claims to religious liberty are pitted against nondiscrimination policies. Unlike other points in our nation’s history, the number of Americans who identify as Christian is continually declining as a percentage of total population. Whereas before the threats to conscience rights were primarily posed by religious majorities, declining religious populations are now beginning to fear the establishment of a secular orthodoxy: one that seeks to prosecute religious minorities who do not share the state’s prevailing ideology. Today’s “culture wars” illustrate the polarizing division, especially in debates over abortion and nondiscrimination policies.

Opposition to Texas’ bill is puzzling for several reasons.

First, there is a tremendous need, both in Texas and nationally, for increased involvement in adoption and foster care services. According to Children’s Rights, nearly 428,000 children are in the foster care system in the United States, with more than 62,000 waiting to be adopted. In 2015, more than 20,000 aged-out of the system without being adopted–with research showing that those who do are at a greater risk of homelessness, unemployment, and incarceration as adults. These numbers suggest a real need for increased involvement. As Texas State Senator Eddie Lucio, a Democrat, told the AP, “It’s about increasing capacity, it’s about providing homes for kids.”

This Texas bill confronts an issue for religiously affiliated social service providers, as “[m]any Texas adoption agencies admit they don’t work with adoptive parents who are single, gay or non-Christian.” Consequently, these organizations face the threat of state prosecution for declining to offer some of these services to those who do not share their organization’s religious values.

Their fear of prosecution is not speculative. In 2006, one of the nation’s oldest adoption agencies, Catholic Charities of Boston, was given a choice between offering services that conflicted with the organization’s conscience or close its doors. The agency chose the latter, as Massachusetts did not have any statute like the one Texas is considering this week. Similar circumstances caused agencies in San Francisco, Washington, D.C. and the state of Illinois to make the same decision. In the words of Bishop Thomas J. Paprocki of the Diocese of Springfield, Illinois, “In the name of tolerance, we’re not being tolerated.” (Thanks to Professor Richard Duncan [@fedsoclawprof] for the tip).

As another example of many, a recent Ninth Circuit decision in Storman v. Weisman held that a family owned pharmacy that objected (on religious grounds) to keeping in stock what the owners believed to be abortifacients was not entitled to a Free Exercise Clause exemption from a state regulation that mandated pharmacies keep the drug in stock. Dissenting from a denial of certiorari, Justice Alito, joined by Chief Justice Roberts and Justice Thomas wrote:

This case is an ominous sign. At issue are Washington State regulations that are likely to make a pharmacist unemployable if he or she objects on religious grounds to dispensing certain prescription medications. There are strong reasons to doubt whether the regulations were adopted for—or that they actually serve—any legitimate purpose. And there is much evidence that the impetus for the adoption of the regulations was hostility to pharmacists whose religious beliefs regarding abortion and contraception are out of step with prevailing opinion in the State. . . . Devout Christians, the Stormans seek to run their business in accordance with their religious beliefs. . . . [the pharmacy] has raised more than ‘slight suspicion’ that the rules challenged here reflect antipathy toward religious beliefs that do not accord with the views of those holding the levers of government power.

Christian organizations can and have played an important role in providing these much needed services, as the Bible commands Christians to care for orphans.

Second, the Human Rights Campaign is concerned that the bill “target[s] transgender youth and youth in foster care.” Presumably, the HRC is concerned that transgender children in foster care might be placed in a home with a parent who may be hostile to their gender identity or sexual orientation.

Aside from the fact that this problem might already occur, regardless of the religious affiliation of the social service provider, the bill also emphasizes the policy that placement decisions will continue to be made in the best interests of the child, “including which person is best able to provide for the child’s physical, psychological, and emotional needs and development.” Thus, if the child requires services from an alternative provider who may embrace the child’s gender identity or sexual orientation, the law acknowledges this possibility. The government will continue to exercise its duty as the child’s managing conservator to make decisions in the child’s best interests or “obtaining necessary child welfare services from an alternate child welfare services provider.”

I understand that children in foster care may not be acquainted with all of their rights in the system, nor are social workers always attentive. However, this bill does not change those rights, it merely prohibits the government from pursuing legal action against providers that make decisions in accordance with their religious beliefs.

Finally, many are concerned this bill “would give state-funded adoption agencies the right to discrimination against LGBT parents and religious minorities.” However, LGBT parents are still free to seek services from non-religious organizations, as only about 25% of Texas’ social service providers are private (and presumably, some of those private organizations are not religiously affiliated).

By protecting organizations who might otherwise be threatened with prosecution for acting in accordance with their conscience, this bill seems to provide an area of religious freedom left vulnerable under Smith. By insulating these organizations from state prosecution, the bill, if enacted, would protect organizations offering these needed services from the secular orthodoxy’s tendency to try to “bend every last minority dissenter to the wheel of prevailing ideology.”

The consequence of this protection will hopefully be the increased involvement and offer of services for the foster care and adoption system.

I’m certainly curious to see what happens.