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House Sends Anti-Gay SB 149 to Governor

The South Dakota Legislature has failed another moral test. This afternoon the House gave final approval* to Senate Bill 149, an overly broad “Sharia for Jesus” wedge bill that seeks to make it harder for gay couples to become parents.

Libby Skarin, policy director for the American Civil Liberties Union of South Dakota, hopes the Governor will have the good sense to veto this bad bill:

Senate Bill 149 is a harmful and discriminatory piece of legislation that sets South Dakota backward. This would allow state-funded child placement agencies, based on their religious beliefs, to discriminate against children and prospective parents. Loving, qualified families could be turned away simply because they are LGBT, of a different faith than the agency, or divorced. The hundreds of children who are awaiting forever families in our state deserve better than this. Their best interests should be our priority, not the religious beliefs of these agencies.

We hope that Governor Daugaard recognizes the harm that discriminatory laws like SB 149 cause our state and considers a veto. If SB 149 becomes law, we want to hear from you or any child or family you know that is harmed. We will be examining our legal options [Libby Skarin, press release, ACLU-SD, 2017.03.02].

SB 149 isn’t about helping children find good parents. Quite the opposite, actually. Governor Daugaard, please save us from our own legislators.

SB 149 passed the House this afternoon 43–20, with seven excused. SB 149 passed the Senate 22–12, with one excused. Were the Governor to veto SB 149, it would take 47 votes in the House and 24 in the Senate to override.

Correction 18:57 CST: Whoops! The House tacked an amendment onto SB 149, meaning SB 149 goes back to the Senate for concurrence before going to the Governor. The amendment, moved by Rep. Timothy Johns (R-31/Lead), adds that the religious belief or moral conviction that a child-placement agency wants to invoke to deny services must be “contained in a written policy, statement of faith, or other document adhered to by a child-placement agency.” It requires that a child-placement agency that chooses deems parents religiously unworthy of its services must provide those rejects with a document listing the Department of Social Services website and a list of other licensed child-placement agencies. Finally, the Johns amendment adds a new section specifying that one child-placement agency’s choice to religiously discriminate against prospective parents “shall not be a factor in determining whether a placement in connection with the service is in the best interest of the child.”


  1. Robin Friday 2017-03-02

    Veto request sent.

  2. owen reitzel 2017-03-02

    Sorry that my Senator Stace Nelson voted for this bill. Sad

  3. owen reitzel 2017-03-02

    and kudos for my Reps. Peterson and Schoenfish as they voted against this bill. Thank you

  4. Francis Schaffer 2017-03-02

    It seems this amendment will codify religious beliefs. Any danger to our wallets of a constitutional challenge?

  5. Cory Allen Heidelberger Post author | 2017-03-02

    Francis, ACLU is certainly signaling a legal challenge could happen. You would think that in a tight budget year, legislators would hesitate to incur avoidable legal expenses. I guess bills like this show their fiscal priorities.

  6. Mark Winegar 2017-03-03

    Are there more children in need of loving homes than homes to receive them? Why then do we want to put barriers between children and loving parents?

  7. bearcreekbat 2017-03-03

    What about the child’s religious beliefs or sexual orientation? If a child is gay, transgender, Mormon, Muslim, Hindu, agnostic, or even atheist, does that mean the folks in charge of getting families for kids should be allowed to use their own personal religious beliefs to deny the child a forever adoptive home because they object to, or disagree with, the child’s religion or sexual orientation?

  8. Troy 2017-03-03

    This statement by Libby Skarin is FALSE: “This would allow state-funded child placement agencies, based on their religious beliefs, to discriminate against children and prospective parents.”

    Child placement agencies which receive state or federal funds are prohibited from discriminating and this bill does not change this. This bill only allows religious based ministries to provide services in accordance with this deeply held religious beliefs.

    There is nothing in this bill which would prohibit other entities from providing these services in accord with their own beliefs.

    ANYBODY who truly is concerned about parents and families would be encouraging more groups to provide non-taxpayer subsidized adoptions and not driving out groups.

  9. bearcreekbat 2017-03-03

    Troy, if the bill doesn’t seek to permit an adoption agency to use religious doctrines as a justification for discrimination against prospective adoptive parents or children needing adoptive homes, then what is the purpose of the bill? Can you provide an example of why the bill is needed or is it just another solution in search of a non-existent problem?

  10. Troy 2017-03-03


    To answer your question, I’ll repeat what I said directly above with some clarification in CAPS.

    “Child placement agencies which receive state or federal funds are prohibited from discriminating and this bill does not change this. This bill only allows religious based ministries WHO DO NOT RECEIVE TAXPAYER FUNDS to provide services in accordance with THEIR (typo above) deeply held religious beliefs.”

  11. Darin Larson 2017-03-03

    Troy, So the hypothetical “skinhead care association” can raise funds to provide services for white kids and reject any black kids from their program on the grounds of their deeply held religious beliefs that the races shall not mix?

  12. bearcreekbat 2017-03-03

    Troy, in checking the language of the bill (from Cory’s link to LRC) I note that section 1(2) provides this definition:

    “State benefit program,” any program administered or funded by the state or by any agent on behalf of the state that provides cash, payments, grants, contracts, loans or in-kind assistance;

    That sounds a lot like the “TAXPAYER FUNDS” you have emphasized. Then section 2(3) provides:

    For the purposes of this Act, the term, adverse action, means any action that directly or indirectly adversely affects a child-placement agency or organization seeking to become a child-placement agency, places the child-placement agency or organization in a worse position than
    it was in before the action was taken, or is likely to deter an adverse action or organization from acting or refusing to act. The term includes, without limitation, the following: . . .

    (3) Denying an application for, refusing to renew, or canceling any benefit from a state benefit program or other funding;

    If the bill only seeks to protect the religious predilections of agencies that “DO NOT RECEIVE TAXPAYER FUNDS,” what is the purpose of such language?

  13. Troy 2017-03-03


    Nice try to distract by raising the extreme hypothetical. But, it is just a weak distraction. You do realize that any two willing parties and a lawyer can legally do an adoption don’t you? Adoptions in the US are not restricted to or required to go through licensed adoption agencies. Skinheads already have a vehicle to do as you suggest.

    But to the matter at hand, if anybody wants to form an adoption agency, go through the licensing process and perform the professional and legal standards of birth mother evaluations and prospective parent evaluations to be able to present themselves as an adoption agency, and have birth mothers who bring babies to them because she agrees with the mission of the organization, they should go for it. I’m not too worried there will be a stampede of birth mothers bringing babies to the “skinhead” doorstep.

    P.S. I do find it ironic there is all of this reaction to allowing religious based decisions while you all endorse racial based decisions. America is supposed to be color-blind yet allow religious differences to co-exist. Your position is the opposite to both.

  14. bearcreekbat 2017-03-03

    I also see that Section 2 (8) provides:

    (8) Discriminating against an organization in regard to participation in a state benefit program;

    and Section 2(10) provides:

    (10) Taking any action that materially alters the terms or conditions of funding . . .

    Section 5 provides:

    Any faith-based or religious child-placement agency or organization that seeks to become a child-placement agency is eligible, on the same basis as any other child-placement agency or organization, to receive a license or participate in a state benefit program. The state may not discriminate against a faith-based or religious organization on the basis, wholly or partly, of the organization’s religious character or affiliation

    Section 6 provides:

    A faith-based or religious child-placement agency that enters into a contract with the state or participates in a state benefit program for child-placement services . . . .

    As above, why would these provisions be necessary to protect the religious predilections of agencies that “DO NOT RECEIVE TAXPAYER FUNDS?”

    Darin, it looks like section 7 of the acts still will not allow discrimination based on “race, ethnicity, or national origin.”

  15. dicta 2017-03-03

    Troy has taken a really interesting tact on this issue. When it is clear an adoption agency discriminates against couples on the basis of sexual orientation or religion, attack the people who have a problem with it as being intolerant.

    -Troy, 2k17

  16. Darin Larson 2017-03-03

    Thanks BCB, so the law prohibits racial discrimination but allows other forms of discrimination.

  17. Libby Skarin 2017-03-03

    Troy –

    Thank you for the comment, but my statement was not false. SB 149 allows religious-based agencies to apply for and receive state contracts. These agencies cannot be denied these contracts or participation in state benefit programs based upon their religious beliefs. Put another way, the state cannot refuse to enter into a contract with an agency because that agency won’t work with (insert category here – LGBT, interfaith, atheist, etc.) families. Further, I’d remind you that there is no state law preventing discrimination on the basis of sexual orientation or gender identity. Though the only religiously-affiliated agency in the state currently receiving state contracts for foster care and adoption is LSS, this bill allows other agencies to receive taxpayer-funded contracts, benefits, etc. Those agencies will then be able to refuse to place children with anyone who they believe does not conform to their religious beliefs. You will find this in the bill in Section 2(3), (4), (8); Section 3; Section 4.

    To receive federal title IV-E funding for state foster care systems in particular, states must satisfy certain criteria related to child safety, permanency and well-being. (See 45 CFR 1355.34). If state-contracted agencies are authorized to refuse to make placements that are in the best interest of the child and turn away qualified families because of religious reasons—which is exactly what this bill would do—that compromises children’s well-being and their opportunities for permanency and, thus, jeopardizes Title IV-E funding. The only explicitly prohibited categories of discrimination in IV-E are race, color, national origin – which is why you see those specifically referenced in the bill.


    Libby Skarin

  18. Troy 2017-03-03

    Bear/Darrin: At least with regard to Indians, federal law specifically discriminates by race. I’m not aware of any other race similarly preferenced but it may exist.

    Section 6 allows the state to enter into a contract with a religious based agency similar to what the feds do with regard to human trafficking. While it is rare, there are times where the State becomes the custodian of a child and contracts with an agency to perform an adoption. As far as I know, most, if not all, such situations are dealt with non-faith based agencies. My guess is this way mostly because the quantity is not that high and it is easier to have one agency so specialized. If this is the rationale, it makes total sense to me for that to continue.

    However, I can imagine a situation where to ease the transition (get parents to waive rights quicker and more easily) the State might agree it is best to accede to the birth parent/family expectations the new parents be of the same race/culture necessitating entering into a contract with a particular faith based agency. When that occurs, it makes sense for the State to have the flexibility to enter into such contract.

    Dicta, I don’t see differences as de facto intolerance. I respect different priorities of other agencies and only ask my priorities be similarly respected. In fact, the definition of tolerance is “the ability or willingness to tolerate something, in particular the existence of opinions or behavior that one does not necessarily agree with” which is exactly my view. Tolerance IS NOT expecting others to bow down to other’s expectations but to allow both to co-exist.

  19. dicta 2017-03-03

    So the prevention of adoption based on religion is a “priority.” It’s weird how acts become theoretical and sorta antiseptic when framed this way. That’s probably the point, though. “No jews allowed” sounds a lot nastier.

  20. Troy 2017-03-03


    You know nothing of which you speak and try as you might to assert something nefarious, you can’t shame people of faith for being committed to their faith. In my faith, when we say “I believe” we are saying “this is what I understand to be True and I will stand for it, even unto death.”

    Every birth mother/family who comes to a faith based adoption agency knows up-front the mission of that agency and the type of home their child will be entrusted. If they prefer something else for their child, they will be referred to an agency that will meet their needs or to an attorney who can arrange a private adoption.

    We don’t have enough agencies in this state and need more, especially agencies which are willing to raise private dollars to subsidize adoptions as the cost of the process (legal and clinical evaluations of both the birth and adoptee families) is not cheap.

  21. bearcreekbat 2017-03-03

    Some might argue we need loving, competent individuals and families to adopt children in SD. A bill that allows any adoption agency, religious or not, to arbitrarily exclude such potential adoptive parents seems counterproductive.

    Troy still has not identified a problem that I can see. Indeed, before this law was proposed how many religious adoption agencies have previously closed their doors in SD for fear they would have to help a religious outcast adopt a needy child? And which of the many religious adoption agencies in SD have indicated they would close if this law is not passed?

  22. mike from iowa 2017-03-03

    Child placement agencies which receive state or federal funds are prohibited from discriminating and this bill does not change this.

    The Hyde Amendment prevents any agency from using government funds to pay for abortions, but wingnuts want to shut down Planned Parenthood just in case.

Comments are closed.