Texas' next religious liberty fight could be over foster care

You can’t talk about religious liberty in Texas without mentioning Lester Roloff.

In the 1970s, Roloff, a Baptist preacher, was known for his homes for teenagers in Corpus Christi. A 1973 legislative report on child care in the state said members heard testimony from children previously in Roloff's Rebekah Home for Girls about irregular meals and whippings. Roloff told lawmakers his homes should be exempted from state interference due to his religious roots.

“We spanked them because God loves them, and we love them,” Roloff told the committee.

Those hearings led to the Legislature passing Senate Bill 965 in 1975, which established child care licensing laws in the state.

Now, 42 years later, Texas legislators are considering sharpening religious protections for faith-based groups the state hires to place children in foster and adoptive homes and oversee their care. Critics say this could give religious groups license to use their faith as a reason to refuse to place foster children with gay couples or with families with certain religious beliefs. Legislators say this could halt bipartisan warmth on bills changing how Texas cares for abused and neglected children.

Rep. James Frank, R-Wichita Falls, vice chairman of the House Human Services Committee, has authored House Bill 3859, which would protect faith-based providers from retaliation if they assert their “sincerely held religious beliefs” while caring for abused and neglected children.

The bill would include allowing faith-based groups to deny a placement if it’s against their religious beliefs; place a child in a religion-based school; deny referrals for abortion-related contraceptives, drugs or devices; and refuse to contract with other organizations that go against their religious beliefs.

Frank said the his bill is meant to give “reasonable accommodations” for faith-based groups and not meant to be exclusionary. He said the ultimate goal is to help find the right home for kids.

Faith-based organizations are closing their doors to foster children “because they can’t afford to stay in business when they’re getting sued on stuff,” Frank said. “They’re basically being told to conform or get out on stuff that’s important but it’s not core to taking care of foster homes.”

The potential religious liberty fight comes as Texas legislators try to reimagine how to care for vulnerable children and entice more communities to open their homes to them. Part of that strategy includes convincing more faith communities to partner with the state. Lt. Gov. Dan Patrick hosted a Faith Leader Summit in November encouraging congregations to help, and Texas First Lady Cecilia Abbott in January publicly urged religious groups to support foster families with donations and other activities.

But Jennifer Allmon, executive director for the Texas Catholic Conference of Bishops, said that Catholic charities based in Texas are wary of continuing as child welfare providers without the protection that HB 3859 could offer. Allmon said some of the 13 such groups in Texas have faced lawsuits for not taking a young woman to get an abortion or not putting children in gay and lesbian households. For now, she said, the legislation's fate would be a "critical factor" in how Catholic Charities decides to move forward with the state. 

“It’s about recognizing the role of the faith-based provider and not extending beyond our role,” Allmon said. “We’re asked to come forward and serve in this system because of our faith and our values and our mission.”

She pointed out that Catholic charities in California, the District of Columbia, Illinois and Massachusetts closed their foster care services when lawmakers did not pass religious protections for them. Right now, some of the groups in Texas have suspended services temporarily to see what the Legislature does about added protections.

Chuck Smith, CEO of Equality Texas, an LGBT rights group, said he was scared of HB 3859 after watching similar legislation become law in Michigan, North Dakota, South Dakota and Virginia. He said Frank's bill allows the possibility of children being denied services because of what a provider believes and that would not fly if it were any other state contractor.

“Any piece of legislation that would allow the personal or religious beliefs of a provider to override the best interest of the child is misplaced and I would suggest is a gross change in what religious liberty actually means,” Smith said.  

It’s unclear if HB 3859 will make it to the House floor, but there are rumblings among legislators that it could be tacked onto another child welfare measure, House Bill 6, as an amendment. That bill, also by Frank, would overhaul the child welfare system by allowing more contracted organizations to monitor children in foster care.

Rep. Eddie Rodriguez, D-Austin, a member of the Texas House's Child Protective Services work group, said Democrats have always been open to more faith-based organization involvement but that a religious liberty amendment would allow such groups to discriminate. He said a potential floor fight could be divisive. 

"We didn't want to get into this political fight over foster care," Rodriguez said. 

Rep. Richard Peña Raymond, D-Laredo, chairman of the House Human Services Committee, said no one has told him they would offer a religious liberty amendment to HB 6. He said these kind of debates could open up a potential amendment banning religious groups from participating in the program if clergy members have been convicted or paid out settlements for sexually assaulting children.

“Those folks like that should think about that,” Raymond said of groups supporting a religious liberty protection as an amendment.

Bee Moorhead, executive director of Texas Impact, said it’s all about the most effective group getting the contract and following the state’s rules. However, she said if legislators are keen to give more protections, there needs to be a sit-down meeting with lawmakers and all of the faith-based groups. She said not all groups have the same needs and many feel current religious protections are enough. Texas Impact has not taken a position on HB 3859.

“This isn’t a topic that lends itself well to sound bites,” Moorhead said. “It’s too easy for politicians and advocates to short change the policy in favor of a glib soundbite and not realize the politics are too complicated and the stakes are too high.”

Not to mention “the devil is in the details” with HB 3859, said Joshua Houston, director of government affairs for Texas Impact. He pointed out allowing groups protection if they have “sincerely held religious beliefs” can apply to views on physical discipline, diets, medical care, blood transfusions, vaccinations and how boys and girls are treated. He said that kind of ambiguity is what made Roloff untouchable for decades.

“When you say ‘sincerely held religious beliefs,’ you’re opening the door wide,” Houston said. “There’s all kind of weird religious beliefs that are out there.”

Read related Tribune coverage:

• After months of calls from advocates to take drastic measures, both chambers unanimously passed bills on Wednesday that would change how the Texas Department of Family and Protective Services cares for vulnerable children. 
• Texas children facing abuse and neglect is set to be a major issue during this year's session as legislators grapple with less funding, a federal court case and troubling headlines about failings at the Department of Family and Protective Services.
• Texas First Lady Cecilia Abbott and Department of Family and Protective Services Commissioner Hank Whitman are making a push for religious groups to give their time and services to help foster families.