The first domino falls: South Dakota adoption discrimination bill becomes law

The seal has been broken on anti-LGBT legislation in 2017.

South Dakota Gov. Dennis Daugaard (R). CREDIT: AP Photo/James Nord
South Dakota Gov. Dennis Daugaard (R). CREDIT: AP Photo/James Nord

Friday evening, South Dakota Gov. Dennis Daugaard (R) signed SB 149 into law, thereby granting adoption agencies that receive state funding a license to discriminate. Child-placement agencies can now enact any policy based on “religious belief or moral conviction” — and, as long as they adhere to their own rules, they cannot be punished by the government for doing so. This means that refusing to place children with same-sex couples, single people, or couples who have had premarital sex will not endanger any agency’s access to taxpayer subsidies.

South Dakota is the first state in 2017 to enact an anti-LGBT law. Dozens of other bills — including anti-transgender bills and anti-LGBT “religious freedom” bills that either similarly target adoption agencies or are far broader — are waiting in the wings across the country.

This was not the first adoption discrimination bill to pass in a state, however. Michigan, North Dakota, and Virginia have similar bills that allow adoption agencies to establish discriminatory policies without fear of retribution.

When signing SB 149, Daugaard apparently expressed concern that private child-placement agencies should be protected from a lawsuit should they ever be sued for discriminating against a “protected class.” There was no attempt to pretend that the legislation was not specifically about ensuring religious-based discrimination against LGBT people.

Libby Skarin, policy director of the ACLU of South Dakota, called out Daugaard and the lawmakers who passed SB 149 for having the wrong priorities. “This discriminatory legislation takes South Dakota in the wrong direction,” she said, “and sends the message that our leaders are more concerned with the desires of religious agencies than the rights of individuals and children in our state.”

There was some hope that Daugaard might have vetoed the bill after he was convinced last year to nix a “bathroom bill” that would have mandated discrimination against transgender students in South Dakota’s public schools.

The anti-LGBT “religious freedom” bills percolating in other states include:

  • More adoption discrimination bills (Alabama, Texas)
  • Health care discrimination bills (Arkansas, Tennessee, Texas)
  • Broader religious refusal bills across employment, housing, and public accommodations (Arkansas, Colorado, Georgia, Hawaii, Illinois, Indiana, Kentucky, Missouri, Oklahoma, Texas, Virginia, Washington, Wyoming)

Last year, Mississippi passed a broad religious refusal law that invited discrimination against LGBT people and couples who have had premarital sex. A federal judge prevented the law from taking effect because it clearly targeted one group to have weaker access to government protection.

Congress is also expected to reintroduce the First Amendment Defense Act (FADA), which similarly guarantees the ability to discriminate against those same groups under the guise of “religious freedom.” President Trump has promised to sign it if it reaches his desk.