Civil Unions and Religious Organizations

Peoria at center of Catholic Charities lawsuit against state
(By PAM ADAMS, Peoria Journal Star, August 13, 2011)

Jess McDonald wishes there was a Solomon-like solution to the political, now legal, stand-off between the state of Illinois and Catholic Charities.

"I cannot figure out what it might be," said McDonald, director of the Department of Children and Family Services for almost a decade beginning in 1994.

Nor, apparently, can anyone else.

Catholic Charities' lawsuit against the state over religious exemptions to the new civil unions law may be the first of its kind, according to parties on both sides of the dispute. A hearing on the lawsuit, scheduled Wednesday in Sangamon County Court in Springfield, could be the start of a lengthy legal fight that puts abused and neglected children at the heart of a clash between the state and the Catholic church, between gay rights and religious freedoms.

The outcome could throw the system into massive upheaval, affecting some 2,000 children in foster care and forcing Catholic Charities out of the business of child welfare in Illinois, as Catholic Charities argues. Or it could maintain the status quo, which is, according to state officials, an unsustainable situation that discriminates against unmarried couples who live together, specifically same-sex couples.

"But what we're really looking at," argues Richard Wexler, director of the National Coalition for Child Protection Reform in Virginia, "is simply the latest in the long battle for civil rights for children in the child welfare system."

There's a long history of religious and racial bigotry in the child welfare system, Wexler says, that goes back to the 1800s, when children of poor Catholic immigrants were often removed from their parents and placed with Protestant families.

Both Catholic Charities and DCFS say their positions, as well as any court decision, hinge on the best interests of each individual child.

Sangamon County Judge John Schmidt's ruling - should he make one after the hearing rather than opt for trial - will have direct impact in Peoria.

Catholic Charities of Peoria is the largest of the four Catholic social services agencies that brought the lawsuit. The agency handles about 1,000 foster care cases in 26 counties, or half of the 2,000 children served by Catholic Charities in the central and southern regions of the state. In Peoria County, Catholic Charities serves about 300 children. There are 15,600 foster children in Illinois.

The case also spotlights just how much DCFS relies on private faith-based agencies for the day-to-day work of caring for wards of the state and how much faith-based agencies rely on state dollars to carry out their religious mission to serve the most vulnerable.

The plaintiffs, Catholic Charities in the dioceses of Peoria, Joliet, Springfield and Belleville, receive a total of $30.7 million in contracts from DCFS. Catholic Charities of Peoria receives $14.8 million of its $24 million budget from the state. In contrast, the Peoria Diocese supplies $253,000 of the agency's income.

The four agencies are the only Catholic Charities agencies in Illinois still providing state-funded child welfare services. Chicago's Catholic Charities ended foster care services in 2007 after it lost insurance coverage. Catholic Charities of Rockford dropped its state contract June 1, the same day the civil unions took effect.

DCFS later transferred the Rockford foster cases and contract to another agency, which is what would happen in other areas should Catholic Charities lose.

For years, DCFS and Catholic Charities operated in a kind of mutually agreed upon 'don't ask, don't tell' arrangement. Catholic teachings forbid Catholic Charities from licensing unmarried couples, gay or straight, for foster care and adoption. DCFS allowed Catholic Charities to refer such couples to other agencies with more inclusive policies.

The civil unions law, which granted same-sex couples many of the same rights as married couples, forced the issue out of the closet, adding, as DCFS spokesman Kendall Marlowe says, another layer of complexity to an already complex issue.

By law, the state cannot give state money to groups who do not follow state laws. Originally, Catholic Charities lobbied to amend the law to clarify language they say exempts and protects faith-based agencies from charges of discrimination based on sexual orientation.

That attempt - led by State Sen. Dave Koehler, who also sponsored the civil unions bill - failed. Ever since, the two sides have been in a stand-off as tense as any child custody battle. Catholic Charities filed the lawsuit, DCFS terminated the agencies current contracts - a move that's been frozen until the lawsuit is resolved.

The ACLU, which represents all children under DCFS care under a long-standing consent decree, joined the case.

Faith-based agencies with sincerely held religious beliefs are the ones being discriminated against, says Peter Breen of the Thomas More Society, the pro-life not-for-profit law center that's representing Catholic Charities. As he sees it, Illinois' civil unions law balances competing interests.

"This is the only case we know of where a Catholic Charities has asserted its rights under the law," Breen says. "We're not aware of any other case in any other state where civil unions law has triggered a lawsuit."

Camilla Taylor, national project director for Lambda Legal Society, which advocates for gay legal rights, says the most unique element of the case is that Catholic Charities filed it.

"What they're requesting is unprecedented, and it's wrong," Taylor says.

ACLU attorney Ben Wolf agrees that the civil unions law allows exemptions for certain religious practices, but not for functions like licensing foster parents.

In the past, there were agencies that wouldn't license interracial couples, he notes.

State officials go out of their way to say Catholic Charities are outstanding child welfare agencies, among the best in the state. But that doesn't give them automatic rights to state contracts.

Directors of Catholic Charities agencies are careful not to imply gay and lesbian couples don't make good parents or unmarried couples, gay or straight, shouldn't be adoptive or foster parents.

Patricia Fox, of Catholic Charities of Peoria, hopes the court case will help explain misinformation about Catholic Charities' policies.

Catholic Charities is not trying to repeal the law, not trying to take away anyone's rights, not trying to reduce the pool of potential foster and adoptive parents, she says.

In keeping with DCFS' focus on placing foster children with relatives, her agency has placed children in the homes of unmarried couples.

"We serve that child and that family, doesn't matter if it's the same or opposite sex," Fox says.

What's key, according to Fox, is Catholic Charities' policies on unmarried couples only go into effect before a child is involved, meaning only when someone approaches them about being a foster parent. Once a child is in Catholic Charities' care, she say, the agency follows all DCFS rules and policies.

But Catholic Charities' practice of referring unmarried couples to other child welfare agencies bothers Wolf. Referring them is still a form of discrimination, he says, that sets up a kind of separate-but-equal policy.

"And what if the Catholic Charities is the best child welfare provider in an area?" McDonald asks. Same-sex couples would have fewer options.

What's at stake is not a simple matter of threatening to split the baby to see who loves him most.

McDonald predicts the issues won't be resolved anytime soon, no matter what happens in court Wednesday.

"It will be interesting to see how Judge Schmidt and, I'm sure, other judges will rule," he says, referring to the potential for appeals. "I can't see the basis for relenting on either side. One is a matter of law, the other is a matter of deeply-held religious principles."

Judge hears arguments in Catholic Charities case
(By Manya A. Brachear, The Chicago Tribune, August 17, 2011)

A Sangamon County judge heard oral arguments today from lawyers representing four Catholic Charities agencies who urged him to prevent the state from severing a partnership that has provided publicly funded foster care and adoption services in Illinois for four decades.

During the hearing, Sangamon County Circuit Court Judge John Schmidt focused on whether the state violated the property rights of Catholic Charities in Joliet, Peoria, Springfield and Belleville when it declined to sign new contracts that would have funded foster care and adoption services during the next fiscal year. Previous contracts expired June 30.

Lawyers for the Illinois Attorney General argued that Catholic Charities' policy of licensing only married couples and single parents living alone as foster parents, while referring couples in civil unions to other agencies, violates state anti-discrimination laws that now accommodate couples in civil unions.

But lawyers for Catholic Charities argued that the agencies had a reasonable expectation that the contracts wouldn't end without sufficient warning or a public hearing, given the decades that they have existed and the infrastructure that has been built around them.

"This 40-year relationship we've had has resulted in annual renewals without exception," lawyer Tom Brejcha argued on behalf of Catholic Charities. "There was certainly no expectation here, no notice given that there was a proposal to cease that relationship."

Deborah Barnes, a lawyer for the Illinois Attorney General, argued that the longevity of the state's contract with Catholic Charities did not entitle them to an automatic renewal.

“It was not arbitrary and capricious, the end of this 40-year relationship," she said. "The state has a great deal of gratitude for Catholic Charities. … The relationship has changed because the legal landscape has changed.”

Brejcha reminded the judge of the opinion that the legal landscape did not change because the civil union law included exemptions for religious institutions. The state argues that those exemptions only apply to clergy who don't want to solemnize civil unions.

“All of this talk about how we refused to obey the law, how we flouted the law is simply wrong,” Brejcha said. “They believe this is a religious mission they shouldn’t walk away from."

Since March, state officials have been investigating whether religious agencies that receive public funds to license foster care parents are breaking anti-discrimination laws if they turn away openly gay parents.

Though the contracts with Catholic Charities had been renewed virtually automatically for years, the agency told the state that it could not accommodate couples in civil unions who want to become foster parents and would refer them to other agencies to abide by Catholic church teaching that defines marriage as between a man and a woman.

The state declined to renew its contracts with Catholic Charities last month, saying that the civil union bill demands that couples in civil unions be treated the same as married couples. Schmidt issued an emergency injunction and ordered the state to extend the previous contracts until the issue was resolved.

Lawyers for the American Civil Liberties Union, which intervened in the case last month, also argued today that Catholic Charities policy violates the constitutional rights of children.

Schmidt interrupted, insisting that the issue of whether the state could sever the contracts was one of property rights, nothing else. He is expected to issue a written ruling in coming days.

Catholic Charities loses ruling on foster care
(By Manya A. Brachear, The Chicago Tribune, August 19, 2011)

A Sangamon County judge ruled Thursday that the state can decline to renew its contracts with Catholic Charities in Illinois to provide publicly funded foster care and adoption services, meaning the process of transferring children to other social service agencies can proceed.

In a packed courtroom just one day earlier, lawyers for Catholic Charities urged Sangamon County Circuit Judge John Schmidt to prevent the state from suddenly severing a partnership that has funded foster care and adoption services in Illinois for four decades.

But Schmidt wrote in his ruling released Thursday that the longevity of the relationship between the state and Catholic Charities in Joliet, Peoria, Springfield and Belleville did not entitle them to automatic renewal of their contracts.

"No citizen has a recognized legal right to a contract with the government," Schmidt wrote.

Since March, state officials have been investigating whether religious agencies that receive public funds to license foster care parents are breaking anti-discrimination laws if they turn away openly gay parents.

In discussions after the civil union bill went into effect in June, Catholic Charities told the state that accommodating prospective foster parents in civil unions would violate Catholic Church teaching that defines marriage between a man and a woman.

Pointing to a clause in the Religious Freedom Protection and Civil Unions Act that they believe protects religious institutions that don't recognize civil unions, the agencies said they would refer those couples elsewhere and only license married couples and single parents living alone.

But lawyers for the Illinois attorney general said that exemption only shields religious clergy who don't want to officiate at civil unions. The policy of Catholic Charities violates state anti-discrimination laws that demand couples in civil unions be treated the same as married couples, they said.

Schmidt's ruling avoided the religious freedom issue. Instead he focused on whether the state violated the property rights of Catholic Charities when it declined to sign new contracts for the next fiscal year. Previous contracts expired June 30.

Tom Brejcha, the lawyer for Catholic Charities, said he likely would ask Schmidt to reconsider the issue of religious liberty, which he believes is more relevant than property rights. Brejcha also said he likely would ask the state to agree to a stay of the judge's order until all appeals are exhausted. Such a stay would delay the transfer of about 2,200 children in Catholic Charities' care to new child welfare agencies.

"There's a lot to argue about here," Brejcha said. "The exercise of religion can not be substantially burdened. … That alone could carry the case for Catholic Charities. A lot of these people involved feel they are compelled by their faith. … The burden is pretty substantial."

Casey Teckenbrock, of Herrin, said he and his wife expect any transition to delay the adoption of their foster daughter. But after that is complete, they likely will cease to be foster parents for Catholic Social Services of Southern Illinois in the Diocese of Belleville.

"If the state doesn't respect our morals, then we don't want to do work for them," Casey Teckenbrock said. "This will be a disaster for the 2,000 kids in foster care."

Benjamin Wolf, a lawyer for the American Civil Liberties Union who represents juvenile state wards as part of a court-monitored consent decree with the state Department of Child and Family Services, said the process of transferring children should begin immediately.

"We need Catholic Charities to cooperate with us," Wolf said. "We should start the process immediately but recognize that it may take some time. I would agree to a careful, orderly process if that takes several months to make sure kids stay in their foster homes. The time frame should depend on how it helps children."

Kendall Marlowe, a spokesman for DCFS, said the transition indeed could take months. He said the judge's order doesn't mean children will be moved tomorrow.

"We've learned from every transition that we've ever done," he said. "It's in the best interest of children that we have an orderly transition. DCFS will not be taking any precipitous action."

Catholic Charities lost their case in Sangamon County, Illinois.

Casey Teckenbrock, of Herrin, said he and his wife expect any transition to delay the adoption of their foster daughter. But after that is complete, they likely will cease to be foster parents for Catholic Social Services of Southern Illinois in the Diocese of Belleville.

"If the state doesn't respect our morals, then we don't want to do work for them," Casey Teckenbrock said. "This will be a disaster for the 2,000 kids in foster care."

"If the state doesn't respect our morals, then we don't want to do work for them," Casey Teckenbrock said. "This will be a disaster for the 2,000 kids in foster care."