In Bates v. Paakseresht, (9th Cir., July 24, 2025), the U.S. 9th Circuit Court of Appeals held unconstitutional as applied to plaintiff Oregon's requirement that to be certified as an adoptive parent, a person must agree to respect and support an adopted child's gender identity and gender expression and use the child's preferred pronouns. Plaintiff contended that it violated her Seventh Day Adventist religious beliefs to use a child's preferred pronouns or take the child for gender transition medical appointments. In a 2-1 decision, the court agreed that the requirement violated plaintiff's free speech and free exercise rights. The majority, in a 50-page opinion, said in part:
We deal here with two vital such rights: the First Amendment’s protections for free speech and the free exercise of religion. These rights work together, with “the Free Exercise Clause protect[ing] religious exercises, whether communicative or not,” and “the Free Speech Clause provid[ing] overlapping protection for expressive religious activities.”... Fundamental as basic freedoms, these rights spring from a common constitutional principle: that the government may not insist upon our adherence to state favored orthodoxies, whether of a religious or political variety....
We hold that Oregon’s application of § 413-200-0308(2)(k) to Bates, in denying her certification to be an adoptive parent, triggers strict scrutiny for both her free speech and free exercise claims. In Part A below, we explain why strict scrutiny applies to Bates’s free speech claim. In Part B, we do the same for Bates’s Free Exercise Clause claim. And in Part C, we explain why applying Oregon’s policy to Bates does not survive strict scrutiny. Bates has therefore shown a likelihood of success on the merits of her claim that denying her certification under § 413-200-0308(2)(k) violates the First Amendment.
Judge Clifton dissented, saying in part in a 40-page opinion:
The only limitation imposed by the state in declining to approve her application to foster a child concerns her treatment of the child, not what she personally believes, how she speaks to the world, or how she practices her faith. Oregon should be permitted to put the best interests of the child for which it is responsible paramount in making the decision to place one of its children in the custody of a foster applicant. Parents would not be expected to entrust their children to caregivers who volunteer that they will not respect the child’s self-determined gender identity, if that is something the parents have decided is important. Oregon should not be powerless to protect children for whom it has parental responsibility and for whom it has decided respect should be given.
