Oregon adoption policy on LGBTQ acceptance violates free speech rights, court says

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The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, is pictured in San Francisco

The James R. Browning U.S. Court of Appeals Building, home of the 9th U.S. Circuit Court of Appeals, is pictured in San Francisco, California February 7, 2017. REUTERS/Noah Berger/File Photo Purchase Licensing Rights, opens new tab

CHICAGO, July 24 (Reuters) – An Oregon woman seeking to adopt two children out of foster care will be allowed to move forward after a U.S. appeals court on Thursday said a state policy requiring adoptive parents to “respect, accept and support” the children’s gender expression and sexual orientation was unconstitutional.

A divided three-judge panel of the 9th U.S. Circuit Court of Appeals reversed a lower court ruling blocking Jessica Bates from adopting because of the Oregon Department of Human Services’ policy.
The majority agreed with Bates, a devout Christian who said her beliefs prevent her from following the policy, finding that it violates Bates’ rights to free speech and free exercise of religion under the First Amendment of the U.S. Constitution.
Circuit Judge Daniel Bress, who was appointed by Republican President Donald Trump in his first term, joined with Circuit Judge Michael Hawkins, an appointee of Democratic President Bill Clinton, in finding that the policy is unconstitutional.
Oregon hasn’t explained why other ways to protect LGBTQ children in foster care — instead of a policy that broadly bans Bates from adopting — aren’t feasible, Bress wrote in the opinion.
“A state’s general conception of the child’s best interest does not create a force field against the valid operation of other constitutional rights,” he wrote.
Bates was represented by lawyers from Alliance Defending Freedom, a conservative Christian group that is routinely involved in high-profile court cases involving religious liberties.
“The 9th Circuit was right to remind Oregon that the foster and adoption system is supposed to serve the best interests of children, not the state’s ideological crusade,” ADF Senior Counsel and Vice President of Litigation Strategy Jonathan Scruggs said in a statement after the ruling.
A spokesperson for Democratic Oregon Attorney General Dan Rayfield, whose office defended the policy, said in a statement they are reviewing the ruling to determine their next steps.
Bates filed the lawsuit in 2023 after her application to adopt a pair of siblings was denied when she told an administrator that she couldn’t support the behavior of a hypothetical child whose preferred pronouns and identity don’t match their biological sex.
The district court rejected Bates’ bid for an injunction against the policy, finding that Oregon has a strong interest in protecting the rights of LGBTQ children and the policy’s regulation of free speech was precise enough.
Circuit Judge Richard Clifton, an appointee of former President George W. Bush, dissented, saying that the policy regulates parental actions and does not impact speech beyond what is necessary.
The case is Bates v. Pakseresht, case number 23-4169 in the 9th U.S. Circuit Court of Appeals.
For Bates: Jonathan Scruggs, James Campbell, Johannes Widmalm-Delphonse, John Bursch of the Alliance Defending Freedom and Rebekah Schultheiss of the Freedom Foundation
For Oregon: Philip Thoennes, Denise Fjordbeck, Benjamin Gutman, Ellen Rosenblum of the Oregon Department of Justice.