In an important ruling yesterday (in Bates v. Pakseresht), a divided Ninth Circuit panel ruled that Oregon violated the Free Speech and Free Exercise rights of Jessica Bates, “a devout Christian and widowed mother of five who wants to adopt two children under the age of nine.” Oregon categorically barred her from adopting any children from foster care because she objected in principle to using (hypothetical) adopted children’s preferred pronouns or to taking them to medical appointments for gender transitions.

Judge Daniel Bress’s excellent majority opinion holds that strict scrutiny applies to Bates’s Free Speech and Free Exercise claims. Oregon flunks strict scrutiny because its policy isn’t narrowly tailored:

Oregon’s denial of Bates’s application … means that Bates can adopt no child in state foster care, whether that child is an infant who is too young to have questions about sexuality, or a member of Bates’s own religious faith who might readily agree with her religious views. Instead, Oregon is disallowing Bates from adopting any foster care child based on the possibility that the child may eventually identify as LGBTQ and encounter a lack of support in Bates’s home. The possibility of this chain of events is speculative. That is presumably even more true when it comes to the possibility that a child will require hormone shots as part of a gender transition. It is not narrowly tailored to impose on Bates an extreme and blanket rule that she may adopt no child at all based on her religious faith, for fear of hypothetical harms to a hypothetical child.

Oregon also hasn’t shown that there is not a less restrictive alternative that would serve its “valid objective in promoting the health and safety of LGBTQ children in foster care”:

Oregon has various ways of protecting LGBTQ children in foster care short of denying Bates the opportunity to even be eligible to serve as an adoptive parent based on her religious views…. As an initial matter, Oregon could first ensure that if a child identifies as LGBTQ or is raising questions about sexuality or gender identity, that child would not be placed with Bates…. [As for protecting] children [who] develop questions about sexual orientation and gender identity only later, after they have been placed with adoptive parents…, the state could impose a system of more regular monitoring or check-ins for parents.

Although the panel is divided, it’s noteworthy that the divide is not along ideological lines. Judge Michael Hawkins, a liberal appointed by Bill Clinton, joined Bress’s majority opinion, and Judge Richard Clifton, a moderate appointed by George W. Bush, dissented.

There is additional good reason to expect that Ninth Circuit liberals will not attempt to rehear the case en banc. Bress’s majority opinion repeatedly cites a 2020 district-court ruling by Judge Salvador Mendoza Jr. that held that a similar Washington policy was unconstitutional. In 2022, Joe Biden appointed Judge Mendoza to the Ninth Circuit. Judge Mendoza presumably agrees with Bress’s ruling, and his fellow liberals who respect him and Hawkins should be disinclined to revisit the matter.

Congratulations to Bates’s lawyers at Alliance Defending Freedom for yet another victory!