Elizabeth and Gabriel Rutan-Ram are suing the Tennessee Department of Children’s Services, but their real beef is with the Holston United Methodist Home for Children. The Knoxville couple, who are Jewish, wished to adopt a boy from Florida, but part of the adoption process involved them taking a state-approved family training course.
According to the lawsuit they filed in state court, they reached out to Holston United because it was the only government-approved agency that could provide them the services they needed. But after initially thinking the home would work with them, they were told that the Methodist group’s core religious principles forbid it from placing children in non-Christian homes.
The Rutan-Rams were shocked. “I felt like I’d been punched in the gut,” Elizabeth Rutan-Ram said in a news release sent out by Americans United for Separation of Church and State, which is representing the couple. “It was the first time I felt discriminated against because I am Jewish.”
But if they win their case, it will be a blow to religious freedom rather than a triumph for it.
The goal of the lawsuit is to overturn legislation signed into law by Gov. Bill Lee in January 2020 that explicitly permits religious adoption agencies to decline to be involved in cases that “would violate the agency’s written religious or moral convictions or policies.” The Rutan-Rams’ lawyers — backed by the American Civil Liberties Union — contend the law violates both the Tennessee Constitution and the U.S. Constitution, which guarantees freedom of religion.
Forcing Adoption Agencies to Close
But the lawyers contend that the right of religious freedom doesn’t extend to those involved in state-funded social services, meaning Holston United must either drop their principles or get out of the business of facilitating adoptions. That’s what happened in Massachusetts in 2006, where Catholic Charities ended their long and successful work in the field of adoption because the state refused to provide them a religious exemption from regulations that required them to place children with same-sex couples.
Similarly, the City of Philadelphia refused to renew the contract of Catholic Social Services for work on adoption in 2018. The U.S. Supreme Court ruled against the city last year. But while the justices were unanimous in declaring that Catholic Social Services had been illegally dropped by the city, the court’s ruling in Fulton v. City of Philadelphia was narrow in scope.
Since the city’s regulations allowed it to grant exemptions, its refusal to give one to the church group was religious discrimination. Six justices — Chief Justice John Roberts and conservative Justices Brett Kavanaugh and Amy Coney Barrett — were joined by the court’s three liberals in making that decision. The three other conservative justices — Clarence Thomas, Samuel Alito, and Neil Gorsuch — argued the court’s ruling should have been more sweeping in scope and overruled the precedent set in 1990 in Employment Division v. Smith, in which the late Justice Antonin Scalia permitted the government to enforce a law that has an adverse impact on religious believers so long as it was presumed to be otherwise neutral.
The broader context for this dispute is the ongoing effort by the left to force religious groups and individuals out of the public square if they insist on living according to their beliefs.
Marginalizing Faith
In recent years, a number of cases have tested whether the courts were prepared to let people of faith stick to their principles in the face of laws that marginalize their faith, especially in the wake of the legalization of gay marriage. In the case of the Christian baker that the state of Colorado tried to force to bake a wedding cake for a gay couple, the Supreme Court narrowly backed the baker (Masterpiece Cake Shop v. Colorado Civil Rights Commission).
But a Christian florist in Washington state was not so fortunate after the court declined to hear its case. The florist was forced to pay damages to a gay couple; she had refused to create flower arrangements for their wedding.
At the heart of these disputes is the impulse of those who believe the revolution in social mores on gay rights should effectively marginalize and strip religious groups of their rights when they are involved in any public activity. In response, religious conservatives have asserted that it is their First Amendment right to free exercise of religion that is at stake. Liberals resent such constitutional protections, saying, in Justice Elena Kagan’s infamous claim, that conservatives are seeking to “weaponize the First Amendment.”
Solution in Tennessee Case
But the problem in the Tennessee case involves a slightly more complicated issue. The Rutan-Rams claim that they are being discriminated against because of their Jewish faith would have merit if the state were seeking to single out Jews and prohibit them from adopting children.
It can be reasonably argued that the state should provide other options for compliance with adoption rules other than those that require working with a religious agency that will only help those who practice its particular faith. A solution to this family’s problem would be for Tennessee to provide such an option — whether ecumenical or secular in nature — that would allow them to legally adopt a child from out of state.
Yet it is quite another thing to claim — as the lawsuit filed by Americans United for Separation of Church and State does — that Tennessee has a positive obligation to force a religious agency to discard its beliefs or that a law that seeks to protect the right of that agency to religious freedom is unconstitutional because people of another faith wish to avail themselves of its services.
Intention Is to Deny Conscience Rights
It needs to be understood that the purpose of the lawsuit is not to protect a Jewish family from discrimination. Rather the intention here is to sweep the public square clean of religious belief. It is based on a faulty interpretation of the First Amendment that would only protect the right of believers to freedom of conscience in their own homes or inside their houses of worship, but strip them of their rights once they left.
Less than 2 percent of Americans and only approximately 1 percent of Tennesseans are Jewish. Their First Amendment rights mandate that they should not be subjected to direct religious discrimination and they are entitled to reasonable accommodations to practice their faith, such as Sabbath observance for employment or kosher food for those in state custody. But their rights do not and cannot extend to compelling other citizens to give up their religious beliefs.
It is possible to sympathize with the plight of the Rutan-Rams as they navigate the bureaucratic maze of the adoption process in which they claimed they faced a dead end because of religion. But sympathy for them, like the sympathy that many Americans feel for gay couples who wish to marry or adopt, does not negate the rights of those with different religious principles or faiths.
Contrary to their claims, if the Rutan-Rams were to prevail it would not be a triumph for the rights of American Jews. Instead, it would be a blow to those of all faith groups — no matter the denomination — that wish to be allowed to practice their principles and interact with the state without having to abandon their faith.
