Foster child case: The path of gay rights in conservative Utah

The controversy over whether a legally married lesbian couple in Utah must give up their foster child comes amid a number of fights over the boundaries between gay rights and religious liberty after the US Supreme Court legalized same-sex marriage.

On Friday, Utah Judge Scott Johansen stayed an order he had made earlier in the week. In the earlier ruling, the judge said that a baby girl whom April Hoagland and Beckie Peirce hoped to adopt would be better off with heterosexual parents. Gov. Gary Herbert, a Republican, had said he was “puzzled” by what he called “activism” from the bench.

In the change Friday, the judge scheduled a Dec. 4 custody hearing.

How gay rights play out in heavily Mormon Utah has already drawn attention – some of it positive. Earlier this year, Utah legislators carved out a compromise antidiscrimination law, which offers protections to both LGBT people and religious individuals opposed to same-sex marriage.

The case with the lesbian couple and their foster child involves issues that are not covered by the so-called Utah compromise. But it points to ongoing challenges in finding a way forward that’s acceptable to all parties.

These kinds of “problems are not going to go away with marriage equality,” says Abbie Goldberg, a psychology professor at Clark University in Worcester, Mass., and an expert on lesbian adoption rights. “There are still legislators, judges, a lot of people not willing to give equal rights without a fight, and we are seeing that now on the ground.”

The issue in the foster child case, according to confirmed statements from the sealed family courtroom, was that the judge, in his decision Tuesday, cited “myriad” studies that suggest adopted children fare better in households with heterosexual parents. Though plenty of research has rebutted such findings, Judge Johansen was far from alone in holding those beliefs. The Michigan Legislature, for example, in June passed a bill that allows religious adoption agencies, many of which receive public funds, to refuse serving same-sex couples if an adoption conflicts with the organization's religious beliefs.

Whether religion was part of Johansen’s decision Tuesday is unclear, though he graduated from a Mormon university.

The two women in the case are already raising Ms. Peirce’s two biological children, and the parents were cleared for adoption after an investigation of their home by the state. The biological mother of the foster child gave her approval for Peirce and Ms. Hoagland to adopt the baby.

Johansen ruled on the case as a schism has been deepening among Mormons about whether to recognize gay people – or cast them out as apostates and refuse to baptize their underage children.

Last week it came to light that the Church of Jesus Christ of Latter-day Saints, which is based in Utah, has adopted the latter approach. Hundreds of Mormons have vowed to quit the church in protest, with some questioning whether the church’s treatment of gay people really reflects Christ’s teachings, especially as it drags children into the conflict.

“I’ve heard from many, many [Mormons] ... who are expressing serious concerns and reservations,” says Benjamin Hertzberg, a Mormon and visiting professor of political science at Emory University in Atlanta, told The New York Times. “It seems to me deeply unfair to put a barrier in the way of the children’s involvement when the children are not responsible for their parents’ choices.”

The Utah foster child case also follows a number of clashes between advancing gay rights and entrenched institutions.

This summer, following the Supreme Court’s decision, Kentucky saw a county court clerk sent to jail for contempt of court after refusing a judge’s order to sign marriage certificates for gay couples. And last week, Houston voters rejected an antidiscrimination bill because critics said it could be used by predatory men to spy on ladies going to the bathroom.

Following acrimony in Houston, Utah was cited as an example of how conservative states can find compromise between gay rights and religious liberties. And that compromise has been lauded for its specificity: On the bathroom issue, for instance, the Utah legislation stipulates that a transgender person has to be at least six months into gender transition to be able to use a bathroom specified for his or her new gender.

Such a willingness to hammer out compromise on a theologically difficult and emotional topic has created a common ground for other states to build on, some legal experts say.

“The important thing about the Utah statute [is] ... it never would have gotten anywhere if there had not been a lot of appreciation, particularly by the Mormons and conservative Republicans, that LGBT people are part of the community,” William Eskridge, a Yale Law School professor, told the Monitor’s Harry Bruinius last week.

Indeed, the Utah law contains the seeds of the kind of compromises that Americans will have to make in the aftermath of the Supreme Court’s same-sex marriage decision, agrees Professor Goldberg of Clark University. A comparison could be made to federal civil rights legislation in the 1960s, after which it took some time for miscegenation laws to die out in the South.

“We’re not going to see judges who decide that black parents can’t adopt white children, because they can’t get away with that,” she says. But at least as of earlier this week, denying a lesbian couple an adoption was “still marginally acceptable.”