Tennessee sued over funding religious adoption agency

A Jewish couple has sued the State of Tennessee, arguing that its funding of creation religious adoption agencies violates the state constitution. Contrary to some news reports, the lawsuit does not include the foster care agency, but only the Tennessee Department of Children’s Services. The only issue is whether a new Tennessee law violates the state constitution. That law prevents the state from withholding funding from religious groups that restrict their services to people or situations that conform to particular religious beliefs. 

There always has been a lot of controversy over state funding of religious groups that confine themselves to serving people of particular religious beliefs. In the field of child welfare, the U.S. Supreme Court decided last summer in the case of Fulton v. City of Philadelphia that it is a violation of the U.S. Constitution to withhold state funding based on an organization’s religious beliefs. Presumably that decision is the reason that this particular lawsuit alleges violation of the Tennessee rather than the U.S. Constitution. Of course, ultimately the state constitution is subject to the guarantees of the U.S. Constitution. In Espinoza v. Montana Department of Revenue, the Court found that a Montana state constitutional provision restricting funding of religious groups violated the U.S. Constitution. While the Montana and Tennessee constitutions are different, it is not clear whether the differences are dispositive.  It will be interesting to see how this lawsuit plays out in light of the Fulton and Espinoza.

One fact that may come into play in a court analysis is the plaintiffs’ claim that the State of Tennessee requires particular training that they were unable to obtain from any secular provider. It would seem that if the state requires particular training for foster or adoptive parents, then it must ensure that people of all religions or no religion have equal opportunities to obtain it. The agency involved in this situation said in a statement that, when it encounters couples who do not subscribe to its statement of faith, “we try to help them find an agency that may be a better fit. Finding other agencies is not hard to do. In Tennessee, for example, there are 6 other agencies for each one faith-based provider.”

Increased funding for more secular agencies, however, is not what the plaintiffs seek. It will be interesting to see if the courts determine that Tennessee’s constitutional provision requires contracting rather than expanding the number of social services agencies serving children.