Bates V Pakseresht
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSICA BATES, No. 23-4169
D.C. No.
Plaintiff - Appellant,
2:23-cv-00474-
AN
v.
Director FARIBORZ
OPINION
PAKSERESHT, in his official
capacity as Director of the Oregon
Department of Human Services;
Deputy Director LIESL WENDT, in
her official capacity as Deputy
Director of the Oregon Department of
Human Services; APRILLE FLINT-
GERNER, in her official capacity as
Interim Director of the Oregon
Department of Human Services Child
Welfare Division; REBECCA
GARRISON, in her official capacity
as certification supervisor for the
Oregon Department of Human
Services office in Malheur County;
CECILIA GARCIA, in her official
capacity as certification officer for
the Oregon Department of Human
Services office in Malheur County,
Defendants - Appellees.
2 BATES V. PAKSERESHT
Appeal from the United States District Court
for the District of Oregon
Adrienne C. Nelson, District Judge, Presiding
Argued and Submitted July 9, 2024
Seattle, Washington
Filed July 24, 2025
Before: Michael Daly Hawkins, Richard R. Clifton, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Bress;
Dissent by Judge Clifton
SUMMARY *
First Amendment
The panel reversed the district court’s denial of plaintiff
Jessica Bates’s motion for preliminary injunctive relief and
remanded with instructions to enter a preliminary injunction
enjoining the Oregon Department of Human Services
(ODHS) from applying Oregon Administrative Rule § 413-
200-0308(2)(k)—a policy requiring that prospective parents
applying to adopt children from foster care must agree to
“respect, accept, and support” the children’s sexual
orientation, gender identity, and gender expression—to
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BATES V. PAKSERESHT 3
Bates in deeming her ineligible for certification as an
adoptive parent.
The state denied Bates’s adoption application under this
policy after Bates, based on her sincerely held religious
beliefs, objected to using adopted children’s preferred
pronouns or taking them to medical appointments for gender
transitions. Bates sued, alleging that the policy violated her
rights to free speech and free exercise of religion under the
First Amendment and asked the court to declare the policy
unconstitutional as applied to her.
The panel held 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. Strict scrutiny applies to
Bates’s free speech claim because Oregon’s policy both
restricts and compels speech based on content and viewpoint
in the areas of sexual orientation, gender identity, and gender
expression. Strict scrutiny applies to Bates’s free exercise
claim because Oregon’s policy burdens Bates’s religious
exercise and is neither neutral nor generally applicable.
Strict scrutiny requires Oregon to demonstrate that its
policy, as applied to Bates, is narrowly tailored in support of
a compelling state interest. The panel acknowledged
Oregon’s valid objective in promoting the health and safety
of LGBTQ children in foster care. However, in light of the
availability of other viable options, which Oregon has yet to
consider for Bates, it is not narrowly tailored to preclude
Bates from adopting any child based on her religious
objections to § 413-200-0308(2)(k). Accordingly, the panel
reversed and remanded for the district court to enter a
preliminary injunction enjoining ODHS from applying
4 BATES V. PAKSERESHT
§ 413-200-0308(2)(k) to Bates in deeming her ineligible for
certification as an adoptive parent.
Dissenting, Judge Clifton would affirm the district
court’s denial of preliminary injunctive relief. He would
apply intermediate scrutiny to Bates’s free speech claim
because § 413-200-0308(2)(k) regulates the conduct of
parents and does not affect their speech based on content or
viewpoint beyond offering recommendations about
communicating with foster children. Applying intermediate
scrutiny, § 413-200-0308(2)(k) advances an important state
interest without burdening more speech than necessary. He
would apply rational basis review to Bates’s free exercise
claim because § 413-200-0308(2)(k) is neutral and generally
applicable. For the same reasons why § 413-200-0308(2)(k)
survives intermediate scrutiny against Bates’s free speech
challenge, it survives the more lenient rational basis review.
BATES V. PAKSERESHT 5
COUNSEL
Jonathan A. Scruggs (argued) and James A. Campbell,
Alliance Defending Freedom, Scottsdale, Arizona; Johannes
Widmalm-Delphonse, Alliance Defending Freedom,
Lansdowne, Virginia; John J. Bursch, Alliance Defending
Freedom, Washington, D.C.; Rebekah Schultheiss, Freedom
Foundation, Springfield, Oregon; for Plaintiff-Appellant.
Philip M. Thoennes (argued), Senior Assistant Attorney
General; Denise G. Fjordbeck, Assistant Attorney General;
Benjamin Gutman, Solicitor General; Ellen F. Rosenblum,
Attorney General; Oregon Department of Justice, Salem,
Oregon; for Defendants-Appellees.
Jeremy N. Gayed, Fort Wayne, Indiana; Emily Jones and
Ryan Lawson, Jones Law Firm PLLC, Billings, Montana;
for Amicus Curiae Christian Alliance for Orphans.
Andrea M. Picciotti-Bayer, The Conscience Project,
McLean, Virginia, for Amici Curiae the Conscience Project,
Nancy Harmon, Diana Johnson, Scott Freeman, and Colleen
Freeman.
Abigail J. St. Hilaire and Payton Tompkins, Ellis Li &
McKinstry LLC, Seattle, Washington; David M. Smolin,
Cumberland School of Law, Samford University,
Birmingham, Alabama; for Amicus Curiae Lifeline
Children's Services.
Ian S. Speir I, Covenant Law PLLC, Colorado Springs,
Colorado; Howard Slugh, Jewish Coalition for Religious
Liberty, Washington, D.C.; for Amici Curiae Jewish
Coalition for Religious Liberty and Islam and Religious
Freedom Action Team.
6 BATES V. PAKSERESHT
Lea E. Patterson and Jeffrey C. Mateer, First Liberty
Institute, Plano, Texas; Joshua K. Payne, Jordan Campbell,
Ronald Miller, and Daniel Sepulveda, Campbell Miller
Payne PLLC, Dallas, Texas; for Amici Curiae
Detransitioners Billy Burleigh, Laura Perry Smalts, Kathy
Grace Duncan, and Amanda Stewart.
Matthew P. Cavedon, Amagi Law LLC, North Augusta,
South Carolina, for Amicus Curiae Richard W. Garnett.
Ilya Shapiro, Manhattan Institute, New York, New York, for
Amici Curiae Manhattan Institute and Dr. Leor Sapir.
Sean M. Corkery, Assistant Solicitor General; Joshua N.
Turner, Acting Solicitor General; Raul R. Labrador, Idaho
Attorney General; Office of the Idaho Attorney General,
Boise, Idaho; Steve Marshall, Alabama Attorney General,
Office of the Alabama, Attorney General, Montgomery,
Alabama; Ben Toma, Speaker of the Arizona House of
Representatives; Warren Peterson, President of the Arizona
Senate; State of Arizona; Tim Griffin, Arkansas Attorney
General, Office of the Arkansas Attorney General, Little
Rock, Arkansas; Ashley Moody, Florida Attorney General,
Office of the Florida Attorney General, Tallahassee, Florida;
Chris Carr, Georgia Attorney General, Office of the Georgia
Attorney General, Atlanta, Georgia; Theodore E. Rokita,
Indiana Attorney General, Office of the Indiana Attorney
General, Indianapolis, Indiana; Brenna Bird, Iowa Attorney
General, Office of the Iowa Attorney General, Des Moines,
Iowa; Kris W. Kobach, Kansas Attorney General, Office of
the Kansas Attorney General, Topeka, Kansas; Liz Murrill
Louisiana Attorney General, Office of the Louisiana
Attorney General, Baton Rouge, Louisiana; Lynn Fitch,
Mississippi Attorney General, Office of the Mississippi
Attorney General, Jackson, Mississippi; Andrew Bailey,
BATES V. PAKSERESHT 7
Missouri Attorney General, Office of the Missouri Attorney
General, Kansas City, Missouri; Austin Knudsen, Montana
Attorney General, Office of the Montana Attorney General,
Helena, Montana; Michael T. Hilgers Nebraska Attorney
General, Office of the Nebraska Attorney General, Lincoln,
Nebraska; Dave Yost, Ohio Attorney General, Office of the
Ohio Attorney General, Columbus, Ohio; Alan Wilson,
South Carolina Attorney General, Office of the South
Carolina Attorney General, Columbia, South Carolina; Ken
Paxton, Texas Attorney General, Office of the Texas
Attorney General, Austin, Texas; Sean D. Reyes, Utah
Attorney General, Office of the Utah Attorney General, Salt
Lake City, Utah; Jason S. Miyares, Commonwealth of
Virginia Attorney General, Office of the Commonwealth of
Virginia Attorney General, Richmond, Virginia; Patrick
Morrisey, West Virginia Attorney General, Office of the
West Virginia Attorney General, Charleston, West Virginia;
for Amici Curiae Idaho, Alabama, Arizona Legislature,
Arkansas, Florida, Georgia, Indiana, Iowa, Kansas,
Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio,
South Carolina, Texas, Utah, Virginia, and West Virginia.
Christopher E. Mills, Spero Law LLC, Charleston, South
Carolina; Concerned Women for merica.
Ray D. Hacke, Pacific Justice Institute, Salem, Oregon;
Thomas Rawlings, Taylor English Duma LLP, Atlanta,
Georgia; for Amici Curiae Michael and Jennifer Lasche.
Brennan A.R. Bowen, Holtzman Vogel Baran Torchinsky &
Josefiak PLLC, Phoenix, Arizona, for Amici Curiae
Professors Mark Regnerus, Loren Marks, Catherine
Pakaluk, and Joseph Price.
Ronald G. London, Foundation for Individual Rights and
Expression, Washington, D.C.; Abigail E. Smith,
8 BATES V. PAKSERESHT
Foundation for Individual Rights and Expression,
Philadelphia, Pennsylvania; for Amicus Curiae Foundation
for Individual Rights and Expression.
Samuel T. Grover, Freedom From Religion Foundation,
Madison, Wisconsin; Alex J. Luchenister, Kenneth D. Upton
Jr., and Kalli A. Joslin, Americans United for Separation of
Church and State, Washington, D.C.; for Amici Curiae
Freedom From Religion Foundation and Americans United
for Separation of Church and State.
OPINION
BRESS, Circuit Judge:
The Oregon Department of Human Services requires that
prospective parents applying to adopt children from foster
care must agree to “respect, accept, and support” the
children’s sexual orientation, gender identity, and gender
expression. Or. Admin. R. § 413-200-0308(2)(k). The state
denied Jessica Bates’s application under this policy after
Bates, based on her sincerely held religious beliefs, objected
to using adopted children’s preferred pronouns or taking
them to medical appointments for gender transitions. As a
result of her religious views, expressed as to hypothetical
adopted children, Bates is now prohibited from adopting any
child in the state’s care.
We hold that Oregon’s policy violates the First
Amendment as applied to Bates. We reverse the district
court’s denial of preliminary injunctive relief and direct that
a preliminary injunction be entered.
BATES V. PAKSERESHT 9
I
A
Under Oregon law, the Oregon Department of Human
Services (ODHS) is responsible for children in the state’s
foster care system. Or. Rev. Stat. § 418.640(1). Prospective
parents may seek to adopt children from this program. To
do so, they must first obtain certification from ODHS. See
id. § 418.630; Or. Admin. R. § 413-200-0272.
Understandably, there are many requirements that an
applicant must meet to be certified as an adoptive parent of
a child in foster care. The certification process involves,
among other things, home studies, evaluation of the
prospective parent or parents, background checks, and
trainings. If an applicant is certified, she then proceeds to
the placement stage, during which ODHS facilitates an
appropriate child match based on a holistic assessment of the
parent’s suitability. See Or. Admin. R. § 413-120-0020.
This case most directly concerns the initial certification
stage. To be certified as an eligible adoptive parent, the
applicant must be found to “[m]eet the Department’s
standards for adoptive homes by demonstrating the
knowledge, skills, and ability to meet, without agency
oversight, the current and lifelong needs of the child” in
various areas. Or. Admin. R. § 413-120-0246(1)(b).
Example areas include “[p]hysical and emotional safety,
attachment and well-being,” “[a]ppropriate social,
educational, developmental, emotional, and physical
support,” and maintaining the child’s “identity, cultural,
religious, and spiritual heritage.” Id. § 413-120-
0246(1)(b)(A), (D), (G).
10 BATES V. PAKSERESHT
Consistent with these provisions, and specifically at
issue in this case, an ODHS rule requires applicants to
demonstrate that they will:
Respect, accept and support the race,
ethnicity, cultural identities, national origin,
immigration status, sexual orientation,
gender identity, gender expression,
disabilities, spiritual beliefs, and
socioeconomic status, of a child or young
adult in the care or custody of the
Department, and provide opportunities to
enhance the positive self-concept and
understanding of the child or young adult’s
heritage[.]
Or. Admin. R. § 413-200-0308(2)(k). This case concerns
the aspect of this rule requiring applicants to respect, accept,
and support the sexual orientation, gender identity, and
gender expression of adoptive children. Id.
In enforcing this part of its policy, ODHS does not
maintain a formal list of actions that an adoptive parent must
agree to fulfill. Instead, as confirmed at oral argument, the
Department sets forth its expectations through an instructor-
led course called the Resource and Adoptive Families
Training (RAFT), which prospective adoptive (and foster)
parents must complete in order to be certified. The course
also includes written training materials that are provided to
applicants.
Section 3 of the RAFT course is entitled “Introduction to
Affirming Homes: Separation, Grief, and Loss.” This
section of the course cites the above-quoted Oregon
Administrative Rule § 413-200-0308(2)(k) and covers the
BATES V. PAKSERESHT 11
state’s expectations for “what it means” to “respect, accept,
and support” the “sexual orientation, gender identity, [and]
gender expression” of adoptive children.
The course materials begin with an introduction that
defines key terms, including “SOGIE,” which is “the
abbreviation for sexual orientation, gender identity, and
gender expression.” According to the materials, “[w]e each
have a sexual orientation and we each have a gender
identity,” and “[w]e all express our SOGIE in different
ways.” The RAFT course at a broad level provides
background and direction on understanding, supporting, and
affirming “LGBTQI2-S” children (“lesbian, gay, bisexual,
transgender, questioning, intersex, and/or two-spirit”). 1 The
course materials cover a variety of related topics, including
definitions and core concepts relating to sexual orientation
and gender identity, myths, “coming out,” and the
importance of ensuring that “LGBTQ+ youth in foster care”
have “nurturing homes where they feel safe and affirmed.”
The course materials also address some of the challenges
these children can encounter, including discrimination,
harassment, and a greater incidence of depression, drug
abuse, and suicide.
Prospective foster parents who take the RAFT course are
also provided with more specific guidance and direction on
affirming LGBTQ children, some of which is at issue here.
Central to this guidance is affirmation and “support through
1
The materials define “intersex” as persons who are “born with a
reproductive/sexual anatomy that does not fit typical definitions of male
and female.” The materials explain that “two-spirit” refers to American
Indian and Alaskan Native American people who “(a) express their
gender, sexual orientation, and/or sex/gender roles in indigenous, non-
Western ways, using tribal terms, and/or (b) define themselves as
LGBTQI in a native context.”
12 BATES V. PAKSERESHT
your words.” The course materials throughout emphasize
the importance of using language and terminology that is
“acceptable,” while “avoid[ing] terms that are not.” Thus,
parents should “[r]espect and acknowledge the identity of
young people who are LGBTQI2-S by using acceptable and
inclusive language in documents and discussions.” Parents
should also “directly address negative attitudes and
behaviors, and intervene when they occur.”
The RAFT materials prominently address how
prospective parents should approach the use of pronouns.
This guidance applies to interactions between the parent and
adopted child but also extends to the parents’ interactions
with others more generally. According to the training
materials, “[u]sing the correct pronouns of each person we
meet is an important way to show others respect and create
an inclusive environment.” A chart sets forth some
pronouns, including “She,” “He,” “They,” “Them,” “Ze,”
“Hir/Zir,” and “Hirs/Zirs.” But it cautions: “Please note that
these are not the only pronouns. There are an infinite
number of pronouns as new ones emerge in our language.
Always ask someone for their pronouns.” Parents are
instructed that “[t]o help create an environment where
LGBTQ+ children and youth feel safe, ask all young people
how they identify and what their pronouns are.” The course
materials list under the heading of “Easy Don’t’s” the “[u]se
of pronouns before the youth tells you what theirs[] are.” In
the case of relationships, parents should “[u]se gender-
neutral language. For example, instead of ‘Do you have a
girlfriend?’ ask, ‘Are you dating anyone?’” The materials
also provide a variety of “Pronoun Etiquette Tips.”
In several places, the course materials counsel parents to
display certain affirming messages in the family home.
According to the materials, “whether or not a youth in
BATES V. PAKSERESHT 13
your care openly identifies as LGBTQ+,” parents should
consider “[d]isplay[ing] ‘hate-free zone’ signs or other
symbols indicating an LGBTQ-affirming environment (e.g.,
pink triangle, rainbow, or ally flag).” (Bold in original.)
Again without regard to whether a child in their care
identifies as LGBTQ, parents should consider “[p]rovid[ing]
access to a variety of books, movies, and materials, including
those that positively represent same-gender relationships,”
while “[p]oint[ing] out LGBTQ+ celebrities, role models
who stand up for the LGBTQ+ community, and people who
demonstrate bravery in the face of social stigma.” An earlier
portion of the materials similarly provides under the heading
“Tips for Supporting Children and Youth”: “Display and
share symbols, images, and resources that accept and affirm
the identity of young people who are LGBTQI2-S,” citing,
among other things, “rainbow flags,” and “pictures and
posters of diverse people who are known to be LGBTQI2-
S.” As an “Easy Do,” parents are encouraged to “[s]hare
stories and role models,” such as “queer music icons;
transgender women in history; Black gay men who made a
difference; [and] famous lesbians, LGBTQ Asian and
Pacific Islanders.”
Of particular importance to this case, the RAFT
materials specifically reference religion in several places.
Among other things, the materials state that for LGBTQ
youth, “[p]rejudice and rejection can occur” in certain
settings, listing among them “faith-based communities.”
The materials further instruct that “[b]ehaviors that openly
reject a youth’s LGBTQ+ identity must be avoided and not
tolerated.” This applies to “forcing youth to attend
activities,” “including religious activities,” that “are openly
hostile or unsupportive of people with diverse SOGIE.” At
one point, the course materials advise as follows: “You do
14 BATES V. PAKSERESHT
not have to choose between your faith and supporting
their LGBTQ+ identity. Many religious groups embrace
LGBTQ+ youth, adults, and their families. There are more
and more affirming churches and religious groups that are
providing affirming spaces to LGBTQ+ youth and their
families.” (Bold in original.)
Finally, the RAFT materials note that transgender youth
“need health-care providers who are appropriately trained to
address their health concerns.” This medical care “includes
the ability to discuss, provide, and obtain authorization for
medically necessary, transition-related treatment, if
desired.”
At oral argument, Oregon confirmed that beyond § 413-
200-0308(2)(k)’s express mandate to “respect, accept and
support” a child’s sexual orientation, gender identity, and
gender expression, the state’s expectations for complying
with this rule are “explained through the [RAFT] class.” The
state has not identified any other criteria or guidelines by
which it assesses an applicant’s compliance with § 413-200-
0308(2)(k). Per the State’s comments at oral argument, there
is also no indication that an applicant must affirmatively
certify her willingness to comply with § 413-200-
0308(2)(k). Instead, based on the record before us, the state
takes individualized action to deny certification to a
prospective adoptive parent if the state becomes aware of
information causing it to conclude the applicant fails to meet
the state’s standards.
B
Jessica Bates is a devout Christian and widowed mother
of five who wants to adopt two children under the age of
nine. In May 2022, she applied for adoptive parent
certification through ODHS. Bates wanted to adopt children
BATES V. PAKSERESHT 15
because she felt called to take in children who were in need.
Bates preferred ODHS over private adoption agencies
because private agencies charge thousands of dollars in fees
and ODHS is the only agency near where she lives.
Bates completed the RAFT course, where she was
educated in the course content discussed above. During
Bates’s training session, the RAFT instructor “heavily
emphasized the Department’s expectations for how parents
should support the sexual and gender identities of children.”
In her declaration, Bates averred that her instructor
explained that adoptive parents “must affirm a child’s sexual
or gender identity.” According to the instructor, this
included the requirements that parents “must use a child’s
preferred pronouns, allow a child to dress and express
themselves in accordance with their gender identity, and take
the child to affirming events like Pride parades.”
Bates views these requirements as incompatible with her
religious beliefs. Bates believes that the “Bible accurately
describes the differences between men and women,” that
“our souls are united with our physical bodies,” that “a
person’s God-given sex has spiritual significance,” and that
people “should not seek to change their sex or engage in any
behavior or speech to suggest a male can be a female, or
vice-versa.” As a result of these beliefs on sexuality, Bates
attests that she “cannot affirm or promote ‘LGBTQ-
affirming’ messages that the state expects of caregivers.”
Bates claims that her sincerely held religious views prevent
her from affirming children in the way Oregon requires, in
that Bates cannot use a child’s preferred pronouns if they
conflict with the child’s biological sex, cannot take her
children to gay pride parades, and so on.
16 BATES V. PAKSERESHT
Bates represents that she will love and support any
adopted child, but she will want to share her beliefs with
them. According to Bates, “I want to share my religious
beliefs, including my religious beliefs about biblical
marriage and our human identity, with my children, whether
biological or adopted,” but will not “force my beliefs or my
religion onto my children.” Bates represents that “[i]f one
of my children tells me that they are gay, or that they are
struggling with gender dysphoria, or that they identify as
transgender, I will listen to them, share my heart with them,
and most of all love them and encourage them that I will
continue to be there for them no matter what.” Bates will
“gladly love and accept any child for who they are,
regardless of their sexual or gender identity.” She “would
never vilify or denigrate one of [her] children, for any
reason.” Bates also represents that she is “open to receiving
any child regardless of the child’s race, nationality, ethnicity,
cultural identity, spiritual beliefs, or sexual orientation,
gender identity, or gender expression.”
After completing the RAFT course, Bates forwarded her
RAFT training certificate to Cecilia Garcia, her ODHS
certifier. Garcia responded by asking Bates how the training
went, noting that she had not had many providers take it in
her area and was interested in the content. On August 9,
2022, Bates responded that the training was “thorough and
helpful,” but that she had concerns about the state’s
requirements for supporting gender identity. As Bates
wrote:
One of the things the training really
emphasized is SOGI (sexual orientation
gender identity) and that the host must
respect, accept, and support children whose
BATES V. PAKSERESHT 17
preferred pronouns & identity don’t match
their biological sex. I don’t know how many
children there are out there under the age of 9
who fall into this category (and to me it’s
kind of crazy that society is wanting to get
kids thinking about this stuff at such young
ages; I think we should let them keep their
innocence), so this may not even be an issue,
but I need to let you know I cannot support
this behavior in a child. I have no problem
loving them and accepting them as they are,
but I would not encourage them in this
behavior. I believe God gives us our
gender/sex and it’s not something we get to
choose. Basically, my faith conflicts with this
& I just felt that I needed to let you know.
Several weeks went by without a response from Garcia.
According to Garcia, after conferring with her supervisor,
“[i]t was decided that I should contact Ms. Bates regarding
her email to discuss ODHS Certification policies and discuss
with Ms. Bates examples of situations that might occur with
a child or youth in care.” Eventually, on September 22,
2022, Garcia and Bates spoke by phone.
Garcia’s declaration recounts her recollection of the call.
On the call, Garcia explained to Bates that “ODHS’s policy
requires general providers to be open to any child regardless
of race, ethnicity, and culture (REC) or sexual orientation,
gender identity and expression (SOGIE).” Garcia further
explained that “ODHS cannot guarantee anything with
respect to a child’s SOGIE,” and that even some younger
children “are aware” of their SOGIE. Bates asked if she
could adopt a child who did not identify as LGBTQ, but
18 BATES V. PAKSERESHT
Garcia “informed Ms. Bates that refusing to accept a child’s
SOGIE could be grounds for denial of her application.”
Although Garcia’s declaration does not mention the
exchange, during the call, Bates says she was asked “how
[she] would respond if the Department hypothetically asked
[her] to take a child to receive hormone shots as part of a
child’s ‘gender transition.’” Bates responded that she would
not do this and that it was “child abuse.” (Bates says her
answer referred to children under the age of nine.) At some
point during the call, Garcia informed Bates that she was
ineligible to adopt because “her objections to affirming a
child’s transgender identity” meant that she “could not
comply with DHS regulations.”
On November 22, 2022, ODHS sent Bates a letter
denying her application to be an adoptive parent because she
could not “meet the adoption home standards.” After
quoting the text of Oregon Administrative Rule § 413-200-
0308(2)(k), the letter explained the reason for denial as
follows:
On July 28, 2022, you completed RAFT
Training. After the training you emailed your
certifier that the training emphasized SOGIE
(Sexual Orientation and Gender Identity and
Expression) as it related to the requirements
that Applicants comply with OAR 413-200-
0308(2)(K). You wrote that you “cannot
support this behavior in a child,” and that you
“would not encourage them in this behavior.”
You also wrote, “I believe God gives us our
gender/sex and it’s not something we get to
choose . . .”. You later had a conversation
with your certifier about this email. You
BATES V. PAKSERESHT 19
were told that the agency expects every
applicant to be open to any child regardless
of race, ethnicity and cultural identity, sexual
orientation, gender identity, and gender
expression.
You indicated that if a child became aware of
their sexual orientation or gender identity and
expression and that it was inconsistent with
your expected sexual orientation or gender
identity or expression for that child while in
your home, you would love and treat them as
your own but would not support their lifestyle
or encourage any behavior related to their
sexual orientation or gender identity or
expression. When asked what it would look
[like] if the agency requested you to take the
child or youth to medical appointments
regarding hormone shot appointments as an
example, you indicated you would not take
them to the appointment and further indicated
you think it “would be considered child
abuse.”
This denial was ODHS’s final determination on the matter.
C
Bates sued ODHS officials in March 2023 under 42
U.S.C. § 1983, alleging that the ODHS policy violated her
free speech and free exercise rights under the First
Amendment. Bates asked, among other things, that the court
declare § 413-200-0308(2)(k) unconstitutional as applied to
her. Bates sought a preliminary injunction two weeks after
filing the complaint.
20 BATES V. PAKSERESHT
The district court denied the motion. The district court
first held that Bates was unlikely to succeed on the merits of
her free exercise claim because the ODHS rule was neutral
and generally applicable. The rule was “facially neutral”
because “it makes no reference to any specific religious
practice, nor does it implicate religion on its face.” Although
Bates argued that the policy treated her worse than other
applicants based on her religious beliefs, the district court
faulted this argument as “demonstrat[ing] a lack of
understanding of the importance of providing a child with
the holistic support and care required to produce well-
rounded and confident adults.” In the court’s view,
Oregon’s judgment on Bates’s ability to “properly care and
support children with certain characteristics” “may
incidentally impact plaintiff’s religious beliefs, but it is not
driven by plaintiff’s religious beliefs.” Bates’s free exercise
claim thus triggered only rational basis review, which the
policy survived because it is “rationally related to the
government’s legitimate interest in protecting LGBTQ+
children in ODHS care from harm.”
The district court next rejected Bates’s free speech claim,
although it regarded this challenge as more formidable. The
district court found that Oregon’s rule, as reflected in the
RAFT training materials, compels and restricts speech based
on both content and viewpoint, and that it “compel[s]
plaintiff’s speech in a manner that would violate her
sincerely held religious beliefs.” The district court explained
that “inherent in the application of the Rule is the expectation
that plaintiff will not espouse disaffirming or negative views
about a child’s LGBTQ+ identities,” so that it “operates on
plaintiff by compelling positive speech, while
simultaneously restrictive negative speech.” Similarly, the
district court reasoned, “the Rule, as applied, utilizes
BATES V. PAKSERESHT 21
viewpoint discrimination because it requires positive speech
and restricts negative speech in the context of gender and
sexual orientation.”
But while concluding that strict scrutiny applied to
Bates’s free speech objection, the district court held that
Oregon’s rule satisfied strict scrutiny as applied to Bates.
Oregon had a compelling interest in protecting LGBTQ
youth from harm. And applying the policy to Bates by
denying her certification as an adoptive parent was narrowly
tailored in support of this interest. The court found that
although Bates had stated her willingness to love and support
any adopted child, “the totality of plaintiff’s statements
indicates a lack of understanding about the unique support
and care that LGBTQ+ children require.” The court further
rejected Bates’s argument that Oregon’s rule was not
narrowly tailored because it prevented her from adopting any
child, of whatever age or gender identity, because children
can identify as LGBTQ later, as they grow up. For this same
reason, the court rejected Bates’s argument that the state
could address its asserted interest in protecting LGBTQ
children at the placement stage, rather than up front, at the
initial certification stage. Accordingly, Oregon’s denying
Bates certification under § 413-200-0308(2)(k) survived
strict scrutiny.
The district court acknowledged that its decision
departed from Blais v. Hunter, 493 F. Supp. 3d 984 (E.D.
Wash. 2020). In that case, Judge Salvador Mendoza of the
United States District Court for the Eastern District of
Washington, who is now a judge on this court, held that a
similar Washington policy was unconstitutional as applied
to prospective adoptive parents. The district court in Bates’s
case was “unconvinced” by the analysis in Blais and reached
22 BATES V. PAKSERESHT
“a different conclusion.” It therefore denied Bates’s request
for a preliminary injunction.
Bates appeals that ruling. We have jurisdiction under 28
U.S.C. § 1292(a)(1). We review the denial of a preliminary
injunction for abuse of discretion but review underlying
legal issues de novo. Mobilize the Message, LLC v. Bonta,
50 F.4th 928, 934 (9th Cir. 2022). A plaintiff seeking a
preliminary injunction must demonstrate that she is likely to
succeed on the merits, irreparable harm in the absence of
preliminary relief, that the balance of equities tips in her
favor, and that an injunction is in the public interest. See
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
II
We deal here with sensitive matters that involve
children, parents, sexuality, and religion. This case lies at
the crossroads of competing visions of family and faith, for
which people of goodwill in our country can have different
perspectives. Yet amidst disagreement, there is some
common ground under law.
No one doubts Oregon’s valid interest in ensuring the
safety and wellbeing of children in its foster care system.
See, e.g., New York v. Ferber, 458 U.S. 747, 756–57 (1982).
And no one doubts the importance of placing foster children
with suitable adoptive parents who will love and care for
them. But this is the starting point for our inquiry, not its
terminus. To acknowledge these valid governmental
objectives is not to deny that the state’s responsibility toward
the children it protects must coexist with other requirements
that our laws rightfully impose. No one thinks, for example,
that a state could exclude parents from adopting foster
children based on those parents’ political views, race, or
BATES V. PAKSERESHT 23
religious affiliations. Adoption is not a constitutional law
dead zone. And a state’s general conception of the child’s
best interest does not create a force field against the valid
operation of other constitutional rights. See, e.g., Mahmoud
v. Taylor, 606 U.S. ---, 2025 WL 1773627, at *21–22 (June
27, 2025); Fulton v. City of Phila., Pa., 593 U.S. 522, 542
(2021); Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 794
(2011); Reno v. ACLU, 521 U.S. 844, 849 (1997); Wisconsin
v. Yoder, 406 U.S. 205, 214 (1972).
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.” Kennedy v. Bremerton Sch. Dist., 597
U.S. 507, 523 (2022). 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. See id. at 524; W. Va. State Bd. of Educ. v. Barnette,
319 U.S. 624, 642 (1943). Nor can the state “condition[]
receipt of an important benefit” upon our agreement to the
same. Thomas v. Review Bd. of Ind. Empl. Sec. Div., 450
U.S. 707, 717 (1981); see also United States v. American
Library Ass’n, Inc., 539 U.S. 194, 210 (2003); Perry v.
Sinderman, 408 U.S. 593, 597 (1972). When “the First
Amendment protects an individual’s right to speak [her]
mind,” 303 Creative LLC v. Elenis, 600 U.S. 570, 586
(2023), it likewise protects her right to speak and live out her
conscience, as her religion would direct.
Because of the centrality of these conjoined rights in our
constitutional system, we subject their intrusion to careful
24 BATES V. PAKSERESHT
judicial evaluation. A law that suppresses or compels speech
based either on content or viewpoint is subject to strict
scrutiny. See, e.g., Reed v. Town of Gilbert, Ariz., 576 U.S.
155, 163–64 (2015); Riley v. Nat’l Fed’n of the Blind of N.
Carolina, Inc., 487 U.S. 781, 797–98 (1988); X Corp. v.
Bonta, 116 F.4th 888, 899 (9th Cir. 2024). That is “the most
rigid” and “most searching judicial inquiry” known to
constitutional law. Students for Fair Admissions, Inc. v.
President & Fellows of Harvard Coll., 600 U.S. 181, 207 n.3
(2023) (citations and internal quotation marks omitted).
Likewise, a law that burdens the free exercise of religion
triggers strict scrutiny if it is not neutral and generally
applicable. Church of the Lukumi Babalu Aye, Inc. v. City
of Hialeah, 508 U.S. 520, 531–32 (1993); Fellowship of
Christian Athletes v. San Jose Unified Sch. Dist. Bd. of
Educ., 82 F.4th 664, 685 (9th Cir. 2023) (en banc). And once
First Amendment strict scrutiny governs, it is a tall order to
uphold the law as applied, for laws that are subject to this
degree of judicial evaluation survive only if they are
narrowly tailored to advance a compelling state interest.
E.g., Reed, 576 U.S. at 163; Lukumi, 508 U.S. at 531–32.
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.
BATES V. PAKSERESHT 25
A
1
We begin with Bates’s right to free speech. “At the heart
of the First Amendment lies the principle that each person
should decide for himself or herself the ideas and beliefs
deserving of expression, consideration, and adherence.”
Agency for Int’l Dev. v. All. for Open Soc’y Int’l Inc., 570
U.S. 205, 213 (2013) (quoting Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 641 (1994)). It follows that any law that
restricts speech based on content or viewpoint warrants most
careful evaluation, and, as we have said, strict scrutiny.
Reed, 576 U.S. at 163; Nat’l Inst. of Family & Life Advocates
v. Becerra, 585 U.S. 755, 766 (2018) (NIFLA); see also
Rosenberger v. Rector & Visitors of the Univ. of Va., 515
U.S. 819, 829 (1995) (explaining that viewpoint
discrimination is “an egregious form of content
discrimination”).
Strict scrutiny likewise applies to a law that compels
speech on these bases. Green v. Miss United States of Am.,
LLC, 52 F.4th 773, 791 (9th Cir. 2022). It does not “matter
whether the government seeks to compel a person to speak
its message when he would prefer to remain silent or to force
an individual to include other ideas with his own speech that
he would prefer not to include,” because this “offends the
First Amendment just the same.” 303 Creative LLC, 600
U.S. at 586–87; see also Agency for Int’l Dev., 570 U.S. at
213 (explaining that it is “a basic First Amendment principle
that ‘freedom of speech prohibits the government from
telling people what they must say’”) (quoting Rumsfeld v.
Forum for Acad. & Institutional Rts., Inc., 547 U.S. 47, 61
(2006) (FAIR)).
26 BATES V. PAKSERESHT
As the district court correctly concluded, Oregon’s rule,
as reflected in the RAFT materials, quite clearly restricts and
compels speech based on both content and viewpoint. It
restricts certain speech by adoptive parents on the topic of
sexual orientation and gender identity, while requiring
speech that aligns with the state’s perspective on these
intensely debated issues in our society. Applicants who wish
to adopt children through the foster care system must
reinforce the state’s perspective of sexuality and gender
identity as evolving concepts, while withholding contrary
views that are less embracing of same-sex relationships and
a conception of gender identity that does not align with
biological sex. The situation would be no different if the
state had restricted parental speech favoring more
“progressive” views of sexuality and gender identity, while
compelling speech along the lines of Bates’s more traditional
understanding. That law would likewise be content- and
viewpoint-based. We will return later to whether such
infringements on speech are justified as applied to Bates.
But there can be no question that they are infringements.
Indeed, speech infringement is a central and assertedly
imperative feature of § 413-200-0308(2)(k). A guiding
baseline of Oregon’s policy is that a significant way in which
parents must “respect, accept, and support” their adopted
children’s sexual orientation, gender identity, and gender
expression is through speech and other expressive activities.
That is, parental speech that promotes the state’s conceptions
of sexual orientation and gender identity is required, and
speech that contradicts the state’s views is prohibited, on the
theory that providing the state’s perspective to children on
these issues—and not questioning or contradicting that
perspective—is necessary to promote children’s safety and
wellbeing. As the district court found, “inherent in the
BATES V. PAKSERESHT 27
application of the Rule is the expectation that plaintiff will
not espouse disaffirming or negative views about a child’s
LGBTQ+ identities,” while simultaneously “operat[ing] on
plaintiff by compelling positive speech.” We agree with the
district court that Oregon’s rule, virtually by definition,
“requires positive speech and restricts negative speech in the
context of gender and sexual orientation.”
We see this throughout the RAFT materials that give
meaning to § 413-200-0308(2)(k). Under “Tips for
Supporting Children and Youth,” the materials direct parents
to “state your support” and to “assure” young people “of
your support through your words,” including through the use
of “appropriate and inclusive language.” The intended
“words” and “appropriate language” would not encompass
Bates’s promises of love and support. Oregon means
something more specific: positive affirmation of the state’s
more fluid understanding of gender identity and the open
promotion of same-sex relationships. Thus, the RAFT
materials repeatedly require parents to “always ask someone
for their pronouns,” to “ask all young people how they
identify and what their pronouns are,” and to “use gender-
neutral language” when asking about relationships. The
materials further direct or encourage parents to display
particular insignia in their homes (“e.g., pink triangle,
rainbow, or ally flag”), to “[d]isplay and share symbols,
images, and resources that accept and affirm the identity of
young people who are LGBTQI2-S,” and to “[s]hare stories
and role models,” like “Black gay men who made a
difference.”
Although some of the guidance in the RAFT materials is
couched as recommended best practices, other guidance is
stated in mandatory terms. And regardless, the guidance that
is styled as recommendations is still broadly reflective of a
28 BATES V. PAKSERESHT
particular viewpoint on sexual orientation and gender
identity, which parents must actively promote under
Oregon’s policy. As Bates has averred without
contradiction, her RAFT instructor “explained that
caregivers must use a child’s preferred pronouns, allow a
child to dress and express themselves in accordance with
their gender identity, and take the child to affirming events
like Pride parades.” (Emphasis added). And the state’s own
denial of Bates’s application shows that the state does not
interpret its policy and the RAFT guidelines to be merely
advisory. The state thus cited Bates’s refusal to “encourage”
children “in this behavior” as grounds for denying her
certification as an adoptive parent.
The dissent’s theory that the RAFT materials are purely
advisory is incorrect. The state did not assemble the lengthy
set of RAFT materials and orient its foster parent training
under them, only for the directives in those materials to be
irrelevant. Indeed, Oregon only initiated its investigation
into Bates’s beliefs after she expressed disagreement with
the RAFT training. It is beside the point that Oregon has not
enshrined the materials into regulations when the state has
confirmed that the RAFT materials define the state’s
expectation for what it means to “respect, accept, and
support” the “sexual orientation, gender identity, [and]
gender expression” of adoptive children. In the context of
raising children, such respect and support inevitably both
restricts and compels speech. As the district court thus
correctly found, “there are aspects of the training materials
that seem inescapably tied to plaintiff’s speech.” The RAFT
materials tell us what kinds of speech—based on content and
viewpoint—are generally required and prohibited.
Otherwise, there is no meaning to § 413-200-0308(2)(k) at
all.
BATES V. PAKSERESHT 29
In short, § 413-200-0308(2)(k), as reflected in the RAFT
materials and in the state’s denial of Bates’s application,
restricts and requires speech based on content and viewpoint
in the areas of sexuality, gender identity, and gender
expression. The district court correctly so concluded. 2
2
The dissent also asserts that no free speech issues are implicated here
at all because Bates was only deemed ineligible to be a foster care parent
due to her refusal to commit to taking a child to hormone therapy. This
is incorrect. Oregon has never made this argument (the dissent’s
quotation of generic references in the state’s briefing to the importance
of the health of a child do not show otherwise). Nor did the district
court—which applied strict scrutiny to Bates’s free speech claim—
conceive of the case as limited to the hormone therapy issue. The reason
is because the record refutes the dissent’s position.
From the outset, and following the RAFT training that covered these
issues, Bates expressed her disagreement with the state’s pronoun policy
in particular, and with the § 413-200-0308(2)(k) policy more generally.
During her call with Garcia, and per Garcia’s declaration, Garcia
understood Bates to be broadly “refusing to accept a child’s SOGIE.”
Garcia’s declaration in fact does not mention any exchange about
hormone therapy. The ODHS letter denying Bates’s application likewise
references Bates’s general unwillingness to “support [adopted
children’s] lifestyle or encourage any behavior related to their sexual
orientation or gender identity or expression.” And ODHS denied Bates’s
application under § 413-200-0308(2)(k), the expectations for which are
set forth in the RAFT materials requirements and recommendations,
which plainly restrict and compel speech based on viewpoint, as the
district court found. The ODHS letter to Bates referenced Bates’s
unwillingness to take children to hormone therapy “as an example” of
her unwillingness to respect, accept, and support a child’s sexual
orientation and gender identity. But this “example” was by no means the
state’s sole or “key” basis for denying Bates certification, as the dissent
contends. Instead, as the district court noted, “inherent in the application
of [§ 413-200-0308(2)(k)] is the expectation that plaintiff will not
espouse disaffirming or negative views about a child’s LGBTQ+
identities,” which “operates on plaintiff by compelling positive speech,
while simultaneously restricting negative speech.”
30 BATES V. PAKSERESHT
2
Oregon does not seriously dispute that if its policy
regulates speech, it does so based on content and viewpoint.
Instead, Oregon argues that § 413-200-0308(2)(k) should
not be regarded as regulating speech in the first place, to the
point that the law is effectively outside of the First
Amendment’s speech protections altogether. Oregon offers
three arguments along these lines. We conclude each lacks
merit. Oregon’s policy, as applied to Bates, is subject to
First Amendment strict scrutiny.
First, Oregon contends that its policy regulates only
speech incidental to conduct. Here Oregon draws on
precedent providing that a law does not violate the First
Amendment when it is “plainly incidental to the . . .
regulation of conduct,” because “it has never been deemed
an abridgment of freedom of speech or press to make a
course of conduct illegal merely because the conduct was in
part initiated, evidenced, or carried out by means of
language, either spoken, written, or printed.” FAIR, 547
U.S. at 62 (quoting Giboney v. Empire Storage & Ice Co.,
336 U.S. 490, 502 (1949)). Oregon argues that it is seeking
to regulate Bates’s conduct as a caregiver, and that any
speech-related requirements are incidental to this end.
We do not think Oregon’s application of § 413-200-
0308(2)(k) can be so characterized. An overarching thesis
of Oregon’s policy is that what a parent says to a child about
sexual orientation and gender identity—and what kinds of
messages a parent generally conveys on these topics in their
daily interactions and homes—is central to respecting,
accepting, and supporting adoptive children. Oregon’s
policy does regulate parents’ conduct to some extent. Had
Oregon simply outlawed harassment or denigration of
BATES V. PAKSERESHT 31
LGBTQ children—which Bates strongly avers she would
not do—Oregon’s position would be much stronger. But
Oregon’s extensive regulation of speech cannot be described
as incidental toward the regulation of conduct. Indeed, if
anything, it is the regulation of speech that predominates.
Oregon’s directions to parents about how to interact verbally
with children, including through designated pronouns, are
not somehow “incidental” to the “conduct” of, for example,
taking children to hormone therapy or signing them up for
certain sports teams. Parenting is not merely “doing,” but
also how one interacts with and treats a child, which is
accomplished in good measure through speech.
Oregon’s reliance on FAIR is therefore misplaced. In
that case, a federal law known as the Solomon Amendment
directed that, as a condition of receiving federal funding,
schools of higher education had to allow the military access
to their campuses for recruiting purposes, on terms akin to
those afforded other employers. 547 U.S. at 51–52. A group
of law schools challenged the Solomon Amendment as
violating the First Amendment, but the Supreme Court
disagreed. It explained that the Solomon Amendment
“neither limits what law schools may say nor requires them
to say anything.” Id. at 60. Because the Solomon
Amendment “affects what law schools must do” and “not
what they may or may not say,” the more logistical speech-
related “recruiting assistance” that the law required was
“plainly incidental” to its regulation of conduct. Id. at 62.
Oregon’s policy is not comparable. Allowing the
military access to a campus is not akin to a policy that
requires adoptive parents to “respect, accept, and support”
the children’s sexual orientation and gender identity, in the
way that the RAFT materials delineate. In FAIR, “law
schools remain[ed] free under the statute to express whatever
32 BATES V. PAKSERESHT
views they may have on the military’s congressionally
mandated employment policy.” Id. at 60. If Bates wishes to
obtain certification as an adoptive parent, she does not
remain free to express her views on sexual orientation and
gender identity, or at least her freedoms in this regard are
severely circumscribed. And because of the speech it
affirmatively requires, Oregon’s policy in fact “force[s]”
Bates “to ‘utter what is not in her mind’ about a question of
political and religious significance.” 303 Creative LLC, 600
U.S. at 596 (brackets omitted) (quoting Barnette, 319 U.S.
at 634). The Oregon policy we consider here cannot be
minimized as an incidental burden on speech.
Second, Oregon argues that it has not denied Bates a
benefit based on her speech because “the state has simply
chosen to support the policy that it believes will best serve
foster children.” In making this argument, Oregon draws on
the Supreme Court’s case law in the area of funding, in
which the Court has held that “[t]he Government can,
without violating the Constitution, selectively fund a
program to encourage certain activities it believes to be in
the public interest, without at the same time funding an
alternative program which seeks to deal with the problem in
another way.” Rust v. Sullivan, 500 U.S. 173, 193 (1991).
Relying on this body of law, Oregon argues that its policy is
akin to funding because it reflects state encouragement of a
policy choice, not interference with a protected activity.
This argument fails. Although we appreciate Oregon’s
position that it seeks to encourage an approach to child
sexuality and gender identity that it believes promotes the
best interests of children, the “best interest of the child”
standard does not cloak the state with limitless authority to
deny adoption certifications. The state could not, for
example, decide that certain political views were most
BATES V. PAKSERESHT 33
conducive to the best interests of children and then reject
prospective adoptive parents who refused to impart those
views.
The analogy to the government funding of programs is
therefore inapt. This case is not about Oregon offering Bates
funding. There is no indication that funding is an option for
Bates. Nor is this a situation in which Bates could deny
hypothetical funding and then get what she wants, because
the state controls the placement of adoptive children in foster
care and is denying Bates certification to adopt any such
child, irrespective of any funding that could exist.
Regardless, even in the funding context, “a funding
condition can result in an unconstitutional burden on First
Amendment rights.” Agency for Int’l Dev., 570 U.S. at 214.
In particular, the Supreme Court has emphasized that when
the government “demand[s] that funding recipients adopt—
as their own—the Government’s view on an issue of public
concern, the condition by its very nature affects ‘protected
conduct outside the scope of the federally funded program,’”
which is impermissible. Id. at 218 (quoting Rust, 570 U.S.
at 197).
Here, it is apparent that Oregon’s policy exceeds the
scope of any particular adopted child, in that it requires
parents to use and refrain from using particular speech
regardless of whether their child identifies as LGBTQ, while
also imposing more general speech requirements for parents
in their dealings with others. The question of whether strict
scrutiny applies here is not governed by inapplicable case
law on funding. It is governed by the principle that “the
Government ‘may not deny a benefit to a person on a basis
that infringes his constitutionally protected . . . freedom of
34 BATES V. PAKSERESHT
speech even if [s]he has no entitlement to that benefit.’” Id.
at 214 (quoting FAIR, 547 U.S. at 59).
Third, Oregon argues that its adoption certification
process can be analogized to professional licensing. Oregon
points out that “[s]tates may regulate professional conduct,
even though that conduct incidentally involves speech.”
NIFLA, 585 U.S. at 768. In doing so, a law can trigger only
rational basis review. See Tingley v. Ferguson, 47 F.4th
1055, 1073 (9th Cir. 2022).
We have already explained that Oregon’s policy cannot
be described as regulating conduct, with regulation of speech
merely an incidental component. Even so, the analogy to
professional licensing is wide of the mark. Oregon identifies
no precedent extending the rules for professional licensing—
such as for doctors and lawyers, see NIFLA, 585 U.S. at 770
(clinicians); Planned Parenthood of Se. Pa. v. Casey, 505
U.S. 833, 884 (1992) (same), overruled on other grounds
by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215
(2022); Tingley, 47 F.4th at 1072 (mental health provider);
Pickup v. Brown, 740 F.3d 1208, 1231–32 (9th Cir. 2014),
abrogated by NIFLA, 585 U.S. 755 (2018) (same); Ohralik
v. Ohio State Bar Ass’n, 436 U.S. 447, 449 (1978)
(lawyer)—to adoptive parents. Oregon requires adoptive
parents of foster children to obtain certification, but that does
not make them analogous to a doctor treating a patient or a
lawyer counseling a client. There is a world of difference in
these roles. See Pacific Coast Horseshoeing Sch., Inc. v.
Kirchmeyer, 961 F.3d 1062, 1069 (9th Cir. 2020) (“[T]he
First Amendment deprives the states of ‘unfettered power to
reduce a group’s First Amendment rights by simply
imposing a licensing requirement.’”) (quoting NIFLA, 585
U.S. at 773).
BATES V. PAKSERESHT 35
Especially when the Supreme Court has cautioned that it
“has not recognized ‘professional speech’ as a separate
category of speech,” NIFLA, 585 U.S. at 767, we are most
reluctant to characterize Bates, the parent, as a member of a
professional class who is by that reason subject to lesser First
Amendment protection. Nor is Bates in her prospective
adoptive parent capacity even engaging in the activities of a
professional to which reduced scrutiny might apply, such as
“professional conduct” or providing “purely factual and
uncontroversial information about the terms under which . . .
services will be available.” Id. at 768 (quoting Zauderer v.
Office of Disciplinary Counsel of S. Ct. of Ohio, 471 U.S.
626, 651 (2018)).
The Supreme Court has recognized that “regulating the
content of professionals’ speech ‘poses the inherent risk that
the Government seeks not to advance a legitimate regulatory
goal but to suppress unpopular ideas or information.’” Id. at
771 (brackets omitted) (quoting Turner Broadcasting, 512
U.S. at 641). Mindful of that warning, we conclude that
providing diminished First Amendment protection to Bates,
a non-professional, is legally unjustified. And for
substantially similar reasons, we cannot conclude that Bates
is analogous to a government employee, either. See, e.g.,
United States v. Peneaux, 432 F.3d 882, 896 (8th Cir. 2005)
(referencing a “body of case law indicat[ing] that foster
parents are generally not considered agents of the state”). As
Oregon itself recognizes, adoptive parents “are not
government employees.”
In sum, because § 413-200-0308(2)(k), as interpreted in
the RAFT materials, both restricts and compels Bates’s
speech based on content and viewpoint, we agree with the
district court that Oregon’s denial of certification to Bates
must be subjected to strict scrutiny.
36 BATES V. PAKSERESHT
B
We turn next to whether strict scrutiny applies to Bates’s
Free Exercise Clause claim. As we have explained, “[t]o
avoid strict scrutiny, laws that burden religious exercise
must be both neutral and generally applicable.” Fellowship
of Christian Athletes, 82 F.4th at 685 (citing Lukumi, 508
U.S. at 546). Oregon’s policy burdens Bates’s religious
exercise, and it is neither neutral nor generally applicable.
1
As an initial matter, Oregon’s application of § 413-200-
0308(2)(k) to Bates burdens her exercise of religion. To be
certified to adopt through Oregon’s foster care system,
Oregon’s policy requires Bates to affirm and promote an
understanding of sexuality and gender identity that is
contrary to her sincerely held religious beliefs. Bates must
at the same time suppress her sharing of those religious
views. Oregon’s policy is “unmistakably normative”
because it is “clearly designed to present certain values and
beliefs as things to be celebrated and certain contrary values
and beliefs as things to be rejected.” Mahmoud, 606 U.S. --
-, 2025 WL 1773627, at *15. From using preferred pronouns
to facilitating gender-related hormonal treatment, Oregon’s
policy directs Bates to go against her religious commitments
by its requirements of word and deed.
The state’s suggestion that Bates is not burdened because
she can continue to hold her own religious views reflects an
incomplete understanding of the Free Exercise Clause. That
constitutional right encompasses religious speech and
practice as a way of life and not merely as private thought.
As the Supreme Court has said, “[t]he Clause protects not
only the right to harbor religious beliefs inwards and
secretly,” because it “does perhaps its most important work
BATES V. PAKSERESHT 37
by protecting the ability of those who hold religious beliefs
of all kinds to live out their faiths in daily life.” Kennedy,
597 U.S. at 524. Oregon’s policy limits Bates in this
important respect.
Indeed, because Bates was denied certification to be an
adoptive parent after she voiced her religious objections to
§ 413-200-0308(2)(k), the burden on Bates is clear. See,
e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer,
582 U.S. 449, 458 (2017) (“To condition the availability of
benefits . . . upon a recipient’s willingness to . . . surrender
his religiously impelled status effectively penalizes the free
exercise of his constitutional liberties.”) (brackets omitted)
(quoting McDaniel v. Paty, 435 U.S. 618, 626 (1978)
(plurality op.)).
In assessing whether strict scrutiny should apply here,
then, the question is whether the state’s policy, as applied to
Bates, is neutral and generally applicable. As we explain
next, it is neither.
2
Oregon’s denying Bates certification to serve as an
adoptive parent was not based on the application of a policy
that is neutral toward religion. Strict scrutiny is therefore
required for Bates’s free exercise claim.
Even if we accept that § 413-200-0308(2)(k) is neutral
toward religion on the face of the rule itself, “[t]he Free
Exercise Clause bars even ‘subtle departures from
neutrality’ on matters of religion.” Masterpiece Cakeshop v.
Colorado Civil Rights Comm’n, 584 U.S. 617, 638 (2018)
(quoting Lukumi, 508 U.S. at 534). Thus, if Oregon is “to
respect the Constitution’s guarantee of free exercise,” it
“cannot impose regulations that are hostile to the religious
38 BATES V. PAKSERESHT
beliefs of affected citizens and cannot act in a manner that
passes judgment upon or presupposes the illegitimacy of
religious beliefs and practices.” Id. In assessing whether
Oregon’s policy is neutral toward religion, we must carefully
examine the totality of the circumstances surrounding its
application, including “the effect of [the] law in its real
operation,” which “is strong evidence of its object.” Lukumi,
508 U.S. at 535, 540; see also Masterpiece Cakeshop, 584
U.S. at 638–39.
We begin first with the most (and seemingly only)
factually analogous decision in this area, Blais v. Hunter,
493 F. Supp. 3d 984 (E.D. Wash. 2020), which was authored
by our now-colleague Judge Mendoza. In Blais, Judge
Mendoza held that a similar Washington policy violated the
Free Exercise Clause as applied to the plaintiffs. Plaintiffs
James and Gail Blais sought to serve as foster parents for
their great-granddaughter, H.V., with a view to eventually
adopting her. Id. at 989. The state had placed H.V., an
infant, in foster care after concerns arose about whether her
birth parents could properly care for her. Id. Because the
Blaises were interested in taking over as foster parents, the
Washington Department of Children, Youth, and Family
began the process of evaluating them for a foster care
license. The Department assigned Patrick Sager, a foster
care licensor, to evaluate the Blaises’ application. Id. at 990.
As part of this evaluation, Sager assessed whether the
Blaises could comply with Washington’s policy for
supporting LGBTQ children, known as “Policy 6900.” To
this end, and based on suggested questions in a home study
guide, Sager asked the Blaises various hypotheticals on the
topic of sexuality and gender identity. Id. For example,
Sager asked: “If at 15 years old, H.V. wanted to undergo
hormone therapy to change her sexual appearance, would
BATES V. PAKSERESHT 39
[you] support that decision and transport her for those
treatments?” Id. Sager also asked the Blaises “[i]f as a
teenager, H.V. wanted to dress like a boy and be called by a
boy’s name, would [you] accept her decision and allow her
to act in that manner?” Id.
The Blaises, who are devout Seventh-day Adventists,
responded that they could not comply with these aspects of
the state’s policy. According to the Blaises, “their Christian
faith obliges them to love and support all people,” and they
would love and support H.V. “in the unlikely event H.V.
may develop gender dysphoria.” Id. At the same time, the
Blaises informed Sager that their sincerely held religious
beliefs prevented them from supporting hormone therapy,
allowing children to wear clothes of the opposite sex, and
calling children by their preferred names. Id. The Blaises
would commit only to providing H.V. with love and care
“consistent with both then-accepted medical principles and
our beliefs as Seventh-day Adventists and Christians.” Id.
The state eventually denied the Blaises’ foster care
application because the Blaises “have been unwilling to
agree to provide safe and affirming support to a child who is
or may identify as LGBTQ+.” Id. at 992.
Judge Mendoza held that the state’s application of Policy
6900 to the Blaises violated the Free Exercise Clause. Judge
Mendoza first concluded that Washington’s denial of the
Blaises’ application was subject to strict scrutiny because
Washington’s policies were not neutral toward religion. Id.
at 993–98. Although the policies were “facially neutral” and
applied to all foster care applicants, Judge Mendoza
observed that “[c]loser inspection of the regulations and
policies at issue reveals that, in practice, they work to burden
potential caregivers with sincere religious beliefs yet almost
no others.” Id. at 996 (citing Lukumi, 508 U.S. at 536).
40 BATES V. PAKSERESHT
Indeed, “[f]or the most part, the only foster care applicants
who might object to supporting certain issues LGBTQ+
children might face will likely do so on religious grounds.”
Id. Because “to be eligible for a foster care license, the
Department required the Blaises to divorce themselves from
their religious beliefs,” Washington’s policy could not be
regarded as neutral. Id. at 997. As Judge Mendoza
concluded:
Department regulations and policies appear
neutral but in practice gerrymander to create
unequal effect. As applied to the Blaises and
others similarly situated, the regulations and
policies disproportionately exclude persons
who observe certain religious faiths from
qualifying as foster parents based solely on
speculative future conduct. In operation,
Department regulations and policies
eliminate a not insignificant cross-section of
otherwise qualified persons from serving as
potential caregivers based on their faith’s
stance on sexual orientation and gender
identity and whether their religion supports
certain issues LGBTQ+ youth might face.
Id. at 998. Judge Mendoza further held that the state’s policy
was not generally applicable (further justifying strict
scrutiny), and that the policy failed strict scrutiny as applied
to the Blaises because the state had less restrictive means of
promoting the welfare of LGBTQ children short of denying
the Blaises’ application (we discuss this aspect of Blais
below). Id. at 998–1001.
BATES V. PAKSERESHT 41
We agree with Judge Mendoza’s analysis on the
neutrality question, which applies with even greater force to
the facts of this case. As an initial matter, Oregon’s policy,
as set forth in the RAFT course materials, specifically
references religion as an oppositional viewpoint to the state’s
understanding of what it means to respect, accept, and
support sexual orientation and gender identity. The RAFT
materials provide that “[p]rejudice and rejection can occur
in social service systems, schools, community settings, faith-
based communities, and families.” (Emphasis added). The
materials further discuss how “[s]ome youth may also
experience bias associated with their LGBTQI2-S identity
and expression in cultural, religious, and spiritual settings.”
(Emphasis added).
The materials do state that “these settings can be
valuable sources of strength and important aspects of
LGBTQI2-S youth identity.” But the religious settings that
Oregon envisions as potentially providing “valuable sources
of strength” that support “LGBTQI2-S youth identity” are
plainly not the kind of religious settings that espouse more
traditional views of gender and sexuality. Instead, parents
are instructed to avoid those settings. According to the
RAFT materials, “[b]ehaviors that openly reject a youth’s
LGBTQ+ identity must be avoided and not tolerated,” which
“includes slurs or jokes about gender or sexuality and
forcing youth to attend activities (including religious
activities, sports activities, and family gatherings) that are
openly hostile or unsupportive of people with diverse
SOGIE.” (Emphasis added). The materials further suggest
to parents, not so guardedly, that they consider a religious
affiliation with views of sexuality more in line with
Oregon’s: “You do not have to choose between your faith
and supporting their LGBTQ+ identity. Many religious
42 BATES V. PAKSERESHT
groups embrace LGBTQ youth, adults, and their families.
There are more and more affirming churches and religious
groups that are providing affirming spaces to LGBTQ+
youth and their families.” (Bold in original.)
By drawing a distinction between different types of
religious beliefs—those that “affirm” LGBTQ+ identity and
those that are “unsupportive of people with diverse
SOGIE”—Oregon runs into a related neutrality principle
“fundamental to our constitutional order”: that the state must
“maintain ‘neutrality between religion and religion.’” Cath.
Charities Bureau, Inc. v. Wis. Lab. & Indus. Rev. Comm’n,
605 U.S. ----, 145 S. Ct. 1583, 1594 (2025) (quoting
Epperson v. Arkansas, 393 U.S. 97, 104 (1968))). As the
Supreme Court reiterated this Term, relying on the
“inextricable connect[ion]” between the Establishment and
Free Exercise Clauses, “[g]overnment actions that favor
certain religions . . . convey to members of other faiths that
‘they are outsiders, not full members of the political
community.’” Id. at 1591 (first quoting Larson v. Valente,
456 U.S. 228, 245 (1982), then quoting Santa Fe. Indep. Sch.
Dist. v. Doe, 530 U.S. 290, 309 (2000)); see also id. (“A law
that differentiates between religions along theological lines
is textbook denominational discrimination.”). In this case,
had Bates told her ODHS reviewer that she harbored
religious beliefs that were consistent with “affirming”
LGBTQ identity in the way that Oregon understands it, she
would have complied with § 413-200-0308(2)(k). Such a
policy is not neutral toward religion.
We do not need to decide if the specific references to
religion in the RAFT materials are sufficient, on their own,
to demonstrate a lack of neutrality. But a state policy that
specifically and repeatedly references religion and religious
organizations—and casts them as taking a view contrary to
BATES V. PAKSERESHT 43
the state on matters of sexuality—does not suggest a policy
that is neutral toward religion. On the topics at issue, the
RAFT materials portray traditional faith-based communities
in a negative light. And in specifically suggesting that
parents might seek out churches that are more “affirming” of
LGBTQ children, the state implies that religious parents in
particular—those who hold more traditional conceptions of
sexuality and gender identity—cannot comply with the
state’s policy to respect, accept, and support LGBTQ
children. 3
In this case, however, we are not limited to the
statements about religion in the RAFT materials. Here, the
state also denied Bates’s request for certification only after
she voiced a religious objection, and after giving it
insufficient solicitude. See Masterpiece Cakeshop, 584 U.S.
at 639 (finding Free Exercise Clause violation when the state
“adjudicat[ed] Phillips’ religious objection based on a
negative normative ‘evaluation of the particular
3
The dissent’s reliance on Olympus Spa v. Armstrong, 138 F.4th 1204
(9th Cir. 2025), is misplaced. That case concerned a challenge brought
by “women only” Korean spas to a Washington public accommodations
law prohibiting public facilities from discriminating on the basis of
sexual orientation. Id. at 1211. Application of this law required the spas
to admit preoperative transgender women. Id. As to the spas’ free
exercise challenge, we concluded that the Washington law “only
incidentally burdened” the spas’ religious expression, and that the
“object, text, legislative history, and real-world operation” of the
Washington statute was “neutral with respect to religious exercise.” Id.
at 1218. This case, which does not involve a public accommodations
law for businesses, is not comparable. Bates’s religious exercise is more
than incidentally burdened. The RAFT materials explicitly single out
religion, and they broadly require and restrict speech and conduct that is
contrary to traditional religious views. Moreover, as we discuss below,
the real-world operation of Oregon’s policy primarily disadvantages
people of faith. Olympus Spa therefore does not govern here.
44 BATES V. PAKSERESHT
justification’ for his objection and the religious grounds for
it”) (quoting Lukumi, 508 U.S. at 537). After one email and
a phone call in which she objected to § 413-200-0308(2)(k)
on religious grounds, Bates was precluded from adopting
any child. And the state has not identified any prospective
foster parent who it turned away following a secular
objection to § 413-200-0308(2)(k).
In addition, although one can imagine non-religious
objections to aspects of § 413-200-0308(2)(k), Oregon’s
policy as a whole stands most obviously in opposition to
more traditional understandings of sexuality and gender.
And those more traditional understandings are often held by
persons with religious viewpoints. See Mahmoud, 606 U.S.
---, 2025 WL 1773627, at *16; Masterpiece Cakeshop, 584
U.S. at 631; Obergefell v. Hodges, 576 U.S. 644, 672, 679–
80 (2015). Judge Mendoza cogently made this same point
in Blais, explaining that “[f]or the most part, the only foster
care applicants who might object to supporting certain issues
LGBTQ+ children might face will likely do so on religious
grounds.” 493 F. Supp. 3d at 996; see also id. 998
(explaining that Washington’s similar policy
“disproportionately exclude[s] persons who observe certain
religious faiths”).
Like Washington’s policy in Blais, Oregon’s policy will
overwhelmingly block those prospective parents who hold
traditional religious views on sexuality and gender. And the
RAFT materials confirm the point, because they specifically
identify religious communities—and therefore the members
of those communities—as those who contradict state policy.
See New Hope Family Servs., Inc. v. Poole, 966 F.3d 145,
169 (2d Cir. 2020) (explaining that when the effect of a state
policy “fell almost exclusively on adoption services holding
particular religious beliefs, that is some reason to suspect
BATES V. PAKSERESHT 45
that the object of the law was to target those beliefs and to
exclude those who maintain them from the adoption
process”).
Considering all the circumstances in the record as a
whole, it is therefore hard to see Oregon as having done
anything other than “pass[ing] judgment upon or
presuppos[ing] the illegitimacy of religious beliefs and
practices,” which the state may not do. Masterpiece
Cakeshop, 584 U.S. at 638. In our respectful view, the
dissent therefore errs in viewing aspects of the record in
isolation without appreciating the overarching import and
effect of Oregon’s policy on prospective foster parents
whose sincerely held religious beliefs contradict the state’s
perspective on gender identity. The dissent overlooks the
reality that policies such as Oregon’s—which condition
adoption certification on parents’ assent to specific
conceptions of sexuality and gender identity—implicate
uniquely religious matters that prove most problematic for
parents who view these issues through a traditional religious
lens.
A facially neutral law need not exclusively burden
religious persons to be regarded as non-neutral in operation.
And while hostility toward religion is sufficient to show that
a law is not neutral in operation, the Supreme Court has
never suggested that overt hostility is required. That would
not be consistent with the Court’s teaching that “[t]he Free
Exercise Clause bars even ‘subtle departures from
neutrality’ on matters of religion.” Masterpiece Cakeshop,
584 U.S. at 638 (quoting Lukumi, 508 U.S. at 534).
Although we would not necessarily describe Oregon’s
policies as subtle, a finding that Oregon acted with an
unconstitutional motive is not essential to our analysis, and
we make no such determination here.
46 BATES V. PAKSERESHT
We are willing to accept on this record that Oregon
intended to act in the best interests of children, and not out
of hostility or animus toward religion. But that does not
make Oregon’s policy neutral toward religion. For the
reasons we have given, Oregon’s policy is not neutral, which
means that for Bates’s Free Exercise Clause claim, we must
apply strict scrutiny to Oregon’s denial of Bates’s
application.
3
Bates’s free exercise claim is also subject to strict
scrutiny because Oregon’s policy is not generally applicable.
See Fellowship of Christian Athletes, 82 F.4th at 685 (citing
Lukumi, 508 U.S. at 546).
“Neutrality and general applicability are interrelated,
and, as becomes apparent in this case, failure to satisfy one
requirement is a likely indication that the other has not been
satisfied.” Lukimi, 508 U.S. at 531. When Oregon’s policy
is not neutral toward religion for the reasons we just
discussed, it nearly follows that the policy is not generally
applicable, either. Bates was denied certification as an
adoptive parent after she voiced a religious objection to
Oregon’s policies, against the backdrop of RAFT materials
that call out more traditional religious settings as tending to
contravene Oregon’s perspective on sexuality and gender
identity. Though Bates “is free” to maintain her views on
these issues, “that freedom comes at the cost of automatic
and absolute exclusion” from Oregon’s foster care adoption
program. Trinity Lutheran, 582 U.S. at 462. And “[w]hen
the State conditions a benefit in this way,” it “punishe[s] the
free exercise of religion” by “‘impos[ing] special disabilities
on the basis of . . . religious status.’” Id. at 461–62 (quoting
Lukumi, 58 U.S. at 533). A policy of this kind is not
BATES V. PAKSERESHT 47
generally applicable when it “imposes a penalty on the free
exercise of religion,” which “triggers the most exacting
scrutiny.” Id. at 462; see also Blais, 493 F. Supp. 3d at 999–
1000 (holding that Washington’s similar policy was subject
to strict scrutiny on these same grounds).
Oregon’s policy also triggers strict scrutiny based on the
substantial discretion afforded to ODHS officials. See
Fellowship of Christian Athletes, 82 F.4th at 685 (“[W]hile
the Fulton majority declined to overrule Smith, the majority
opinion clarified Smith’s scope, holding that the mere
existence of government discretion is enough to render a
policy not generally applicable.”) (citing Fulton, 593 U.S. at
537). The Supreme Court has directed that “in
circumstances in which individualized exemptions from a
general requirement are available, the government ‘may not
refuse to extend that system to cases of religious hardship
without compelling reason.’” Lukumi, 508 U.S. at 537
(quoting Employment Div., Dep’t of Hum. Res. of Or. v.
Smith, 494 U.S. 872, 884 (1990)). That reflects the
overarching principle that, to avoid strict scrutiny, a
supposedly neutral policy cannot leave officials with the
discretion to decide when the policy applies. Fellowship of
Christian Athletes, 82 F.4th at 685 (citing Fulton, 593 U.S.
at 533).
This strict scrutiny-triggering discretion can take
different forms. In Fulton, the Supreme Court’s most recent
foray into this area, the Court considered a Philadelphia
policy that foster care agencies could not reject prospective
adoptive parents based on their sexual orientation. 593 U.S.
at 535. Fulton held that this policy was not generally
applicable because it allowed the Commissioner of the
Department of Human Services to grant individualized
exceptions from the policy in his “sole discretion.” Id. at
48 BATES V. PAKSERESHT
535, 540. Similarly, in Fellowship of Christian Athletes, we
considered a school district’s application of its non-
discrimination policies to a Christian club at a high school,
which resulted in the district revoking the club’s student
group status. 82 F.4th at 671. The district did not “apply its
non-discrimination policies without exception,” and instead
“retain[ed] (and exercise[d]) significant discretion in
applying exceptions to its own programs, as well as to
student programs.” Id. at 687. In these circumstances, the
“authority ‘to decide which reasons for not complying with
the policy are worthy of solicitude’ on an ad hoc basis
render[ed] the policy not ‘generally applicable’ and
require[d] the application of strict scrutiny.” Id. (quoting
Fulton, 593 U.S. at 537).
This area of Free Exercise doctrine reflects the
recognition that when there is discretion in applying a
general policy, the denial of an exception in the face of a
religious objection can raise the prospect of religious
discrimination, and thus a Free Exercise Clause violation,
even if there is no overt religious animus. See Fulton, 593
U.S. at 533 (“A law is not generally applicable if it ‘invite[s]’
the government to consider the particular reasons for a
person’s conduct by providing ‘a mechanism for
individualized exemptions.’” (quoting Smith, 494 U.S. at
884)); Fellowship of Christian Athletes, 82 F.4th at 685.
Strict scrutiny is therefore warranted in these contexts,
“regardless whether any exceptions have been given” under
the policy. Fulton, 593 U.S. at 537.
Oregon’s policy is not structured in the same way as the
policy in Fulton, which contained an explicit carve-out
allowing the Commissioner to make exceptions in his “sole
discretion.” Id. at 535. But it invites a similar concern
because it incorporates ad hoc decision making based on
BATES V. PAKSERESHT 49
non-objective criteria, in an area that implicates unique
religious concerns. See Blais, 493 F. Supp. 3d at 998. This
creates the distinct possibility of uneven application of the
policies reflected in § 413-200-0308(2)(k), posing an undue
risk of case-by-case discrimination on the basis of religion.
As the state confirmed at oral argument, ODHS does not
maintain a formal set of criteria by which it assesses whether
parents will comply with § 413-200-0308(2)(k). Instead, the
state’s expectations are set forth in the RAFT materials. But
although various aspects of those materials are described in
mandatory terms, others are described as recommendations.
Nor are the RAFT materials necessarily exclusive of all
requirements, either. In this case, Bates has averred without
contradiction that her RAFT instructor told her that parents
“must” take children to “affirming events like Pride
parades,” even though parades are not specifically
mentioned in the RAFT materials. What counts as enough
support, acceptance, and respect for sexual orientation and
gender identity is therefore not definitively spelled out in
Oregon’s policies. And in this case, Bates was denied
certification even though she represented that she would
“love and accept any child for who they are, regardless of
their sexual or gender identity.”
The end result is that although Bates was denied
certification when she fronted her inability to comply with
certain of Oregon’s policies for religious reasons, how
Oregon assesses perceived non-compliance with § 413-200-
0308(2)(k) is not “tied to particularized, objective criteria.”
Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1082 (9th Cir.
2015). The RAFT materials give meaning to Oregon’s
conception of supporting, accepting, and respecting sexual
orientation and gender identity. They show that § 413-200-
0308(2)(k) restricts and compels speech based on viewpoint,
50 BATES V. PAKSERESHT
as the district court found. But the RAFT materials do not
answer how an ODHS certifier should make the call in
deciding whether a particular applicant is capable of
complying with § 413-200-0308(2)(k). Nor is it apparent
that Oregon in fact requires prospective parents to
affirmatively confirm their willingness to respect, accept,
and support a child’s sexuality and gender identity, as
opposed to enforcing it when parents object, which will most
likely be in the form of a religious objection. In short, even
if an ODHS certifier’s discretion is not completely
unfettered, there is ample discretion nonetheless. See
Fellowship of Christian Athletes, 82 F.4th at 687 (“The
District’s assertion that Fulton was only concerned with
‘unfettered’ discretion, is overly narrow.”).
At the end of the day, this means that whether a parent
will be deemed capable of respecting, accepting, and
supporting a child’s sexual orientation and gender identity
will necessarily depend to a fair extent on the judgments of
ODHS certifiers. And as Judge Mendoza explained in Blais,
licensing rules are not generally applicable when the state
“encourages licensors to consider an applicant’s religious
beliefs and stances on LGBTQ+ rights,” and when “a
distinctive feature of the foster care licensing process is the
licensor’s subjective assessment of various criteria.” 493 F.
Supp. 3d at 999.
We do not mean to criticize Oregon for employing this
form of decision-making. It seems inevitable that in
assessing whether an applicant has the knowledge, skills,
and abilities to care for an adopted child, some degree of
subjective evaluation is inevitable. See id. at 998 (holding
that strict scrutiny applies because “several open-ended
regulations and policies give the Department broad
discretion—case-by-case—to determine whether a person
BATES V. PAKSERESHT 51
qualifies for a foster care license”). That discretion is
embedded in the approval process given that Oregon
requires parents to respect, accept, and support a child’s
sexual orientation, gender identity, and gender expression—
a uniquely opaque obligation to which persons of good faith
may ascribe different obligations and meaning.
Oregon is free to employ a more subjective policy such
as this. But the ad hoc judgments it invites provides a further
reason why Oregon’s application of the policy in the face of
Bates’s religious objection must be evaluated under the strict
scrutiny framework. See Fulton, 593 U.S at 537; Fellowship
of Christian Athletes, 82 F.4th at 687.
C
Because Bates has met her burden to “demonstrate an
infringement of [her] rights under the Free Exercise and Free
Speech Clauses,” our focus “shifts to the defendant to show
that its actions were nonetheless justified and tailored” under
a strict scrutiny analysis. Kennedy, 597 U.S. at 524. This
requires Oregon to demonstrate that its policy, as applied to
Bates, is narrowly tailored in support of a compelling state
interest. E.g., Reed, 576 U.S. at 163; Lukumi, 508 U.S. at
531–32; Fellowship of Christian Athletes, 82 F.4th at 694.
This is a difficult showing to make. See, e.g., Williams-
Yulee v. Fla. Bar, 575 U.S. 433, 444 (2015) (“‘[I]t is the rare
case’ in which a State demonstrates that a speech restriction
is narrowly tailored to serve a compelling interest.”)
(quoting Burson v. Freeman, 504 U.S. 191, 211 (1992));
Lukimi, 508 U.S. at 546 (similar for Free Exercise Clause).
Beginning with the state’s interests, we acknowledge
Oregon’s valid objective in promoting the health and safety
of LGBTQ children in foster care. We do not question that
these children, who are emerging from the foster care
52 BATES V. PAKSERESHT
system, may face unique challenges as they grow up. But
“[r]ather than rely on ‘broadly formulated interests’ courts
must ‘scrutinize[] the asserted harm of granting specific
exemptions to particular religious claimants.’” Fulton, 593
U.S. at 541 (quoting Gonzales v. O Centro Espírita
Beneficente União do Vegetal, 546 U.S. 418, 431 (2006)).
And in this case, Bates raises a substantial question as to
whether Oregon has a compelling interest in precluding
Bates, in particular, from adopting foster care children, given
the evident need for adoptive parents in Oregon and Bates’s
unchallenged commitment to love and never denigrate a
child. None of the studies the state cites speak to the risks
associated with children residing in a home like Bates’s.
Bates’s argument about her fitness as a parent also draws
support from the fact that many fully capable parents share
Bates’s same religious views. See Mahmoud, 606 U.S. ---,
2025 WL 1773627, at *16 (“Many Americans, like the
parents in this case, believe that biological sex reflects divine
creation, that sex and gender are inseparable, and that
children should be encouraged to accept their sex and to live
accordingly.”); Obergefell, 576 U.S. at 672; Blais, 493 F.
Supp. 3d at 998 (explaining that Washington’s similar policy
would “eliminate a not insignificant cross-section of
otherwise qualified persons from serving as potential
caregivers based on their faith’s stance on sexual orientation
and gender identity”).
But even if we assume Oregon has demonstrated a
compelling interest relating to Bates herself, a more
fundamental problem remains: Oregon’s denial of Bates’s
application under § 413-200-0308(2)(k) 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
BATES V. PAKSERESHT 53
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.
This is confirmed by the fact that Oregon has not shown
that no “less restrictive alternative would serve the
Government’s purpose.” United States v. Playboy Ent. Grp.,
Inc., 529 U.S. 803, 813 (2000); see also Thomas, 450 U.S.
at 718 (“The state may justify an inroad on religious liberty
by showing that it is the least restrictive means of achieving
some compelling state interest.”). The availability of less
restrictive means was true in Blais, see 493 F. Supp. 3d at
1000, and it is true here, too. See Burwell v. Hobby Lobby
Stores, Inc., 573 U.S. 682, 728 (2014) (“The least-
restrictive-means standard is exceptionally demanding.”).
Indeed, 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. See Playboy, 529 U.S. at 816
(explaining that “[w]hen a plausible, less restrictive
alternative is offered,” “it is the Government’s obligation to
prove that the alternative will be ineffective to achieve its
goals”).
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
54 BATES V. PAKSERESHT
with Bates. See Blais, 493 F. Supp. 3d at 1000 (finding that
Washington’s similar policy was not narrowly tailored
because “[t]he Department permissibly could address
LGBTQ+ concerns at the placement stage, rather than at
licensing. It could address the issue at a later, more
appropriate age.”). Bates herself agrees that the state could
avoid placing such a child with her, without issue.
Addressing the perceived problem at the placement stage
would also be in keeping with Oregon’s adoption policies
more generally, which allow eligible parents to decline a
placement, including based on otherwise protected criteria
such as sex.
We recognize that children may develop questions about
sexual orientation and gender identity only later, after they
have been placed with adoptive parents. But even then,
Oregon has other means of protecting these children from
the possibility of unsupportive homes short of denying Bates
certification at the outset, due to her religious beliefs. As
Bates agreed, the state could impose a system of more
regular monitoring or check-ins for parents. Should the state
learn that a child in Bates’s care is LGBTQ or is raising
questions about these issues, the state could work to ensure
that the child is receiving appropriate support. If the support
is inadequate, the state could respond appropriately in
various ways, including, in extreme situations, by removing
the child. See Blais, 493 F. Supp. 3d at 1000. Oregon could
also require parents to undergo additional training.
Any system of monitoring or continuing education could
of course not be so onerous that it would infringe without
justification on Bates’s free speech and free exercise rights.
But the state no doubt could achieve its ends in most cases
through actions well short of this, and Bates herself
acknowledges that she could be subjected to reasonable yet
BATES V. PAKSERESHT 55
meaningful oversight. Oregon would likewise have the
ability to insist that children receive necessary medical
treatment, and to decide that parental non-compliance with
medical needs warrants revisiting parental foster care rights.
The dissent is therefore mistaken in concluding that short
of a prophylactic rule preventing Bates from adopting any
child, Oregon would be “powerless to protect children.”
Nor, contrary to the dissent, is Bates “demand[ing] the “right
to treat [a] child unfettered from the state’s terms,” to
“refus[e] medical care that Oregon determine[s] should be
provided,” or to subject adopted children to “conversion
therapy.” These concerns are unfounded. Oregon retains
ample authority under our decision to monitor the parent-
child relationship and to intervene when appropriate. But it
is not narrowly tailored to deem Bates categorically
ineligible to adopt any child from foster care based on
religious views that many Americans sincerely hold and the
possibility of speculative harms to hypothetical children.
Supporting our holding is the fact that other jurisdictions
have demonstrated an ability to balance parents’ First
Amendment rights and the interests of children, without
having to exclude altogether parents like Bates. For
example, in Blais, the State of Washington agreed to a
permanent injunction preventing the state “from requiring a
foster family home license applicant or a family home study
applicant to express agreement with any policy regarding
LGBTQ+ issues that conflicts with the applicant’s sincerely
held religious views.” Blais v. Wash. State Dep’t of
Children, Youth & Families, No. 2:20-cv-187 (E.D. Wash.
Jun. 4, 2021), ECF No. 85-1, at 2. Under the injunction, the
State can “take an applicant’s views on LGBTQ+ issues into
account when reviewing” the application, but “the
applicant’s sincerely held religious beliefs regarding
56 BATES V. PAKSERESHT
LGBTQ+ issues cannot serve to disqualify them.” Id.
Instead, under the injunction, “the applicant agree[d] to
follow the child’s case plan and to allow the physical,
medical, mental, psychological, emotional, cultural, and
social needs of foster children who identify as LGBTQ+ or
who may so identify in the future to be met in their care,”
including through assessment by a court, the state, and the
child’s legal parents or guardians. Id. at 2–3.
Similarly, the U.S. Department of Health and Human
Services (HHS) under the Biden Administration recently
published a final rule concerning federally funded foster care
agencies, which provides further indications of the less
restrictive means available to Oregon. See Designated
Placement Requirements Under Titles IV–E and IV–B for
LGBTQI+ Children, 89 Fed. Reg. 34818 (Apr. 30, 2024) (to
be codified at 45 C.F.R. pt. 1355). In its rule, HHS
“distinguishes between the requirement of a safe and
appropriate placement, which is applicable to all children in
foster care, and a Designated Placement for LGBTQI+
children.” Id. at 34819. The rule does not “penalize a
provider that does not seek or is determined not to qualify as
Designated Placement provider” for LGBTQ children. Id.
Recognizing “the vital role that religious families and faith-
based organizations play in providing care and services” to
foster children, HHS’s “obligation to provide an
environment that supports the child’s LGBTQ+ status or
identity under this rule applies only to those providers who
have chosen to be Designated Placements.” Id. at 34848.
But for any child in foster care, the HHS rule also
“requires agencies to notify certain children about the
availability of Designated Placements, the process to request
one, and the process to report concerns about their current
placement or about retaliation against them.” Id. at 34819.
BATES V. PAKSERESHT 57
These notification requirements apply “to all children age 14
and over, as well as those under age 14 removed from their
home due, in whole or part, to familial conflict about their
sexual orientation, gender identity, gender expression, or sex
characteristics; or if they have disclosed their LGBTQI+
status or identity; or whose LGBTQI+ status or identity is
otherwise known to the agency.” Id. Further, to mitigate
“the potential for disruptive placement changes,” a child
“could also request that services be offered to stabilize their
current placement.” Id.
Like the injunction in Blais to which Washington
assented, the HHS rule contains policies that Oregon could
consider to address concerns about providing supportive and
non-harassing environments for LGBTQ children, including
those who do not currently identify as LGBTQ. Oregon has
not demonstrated why these options could not be taken
instead of categorically prohibiting Bates from fostering or
adopting children. In light of the availability of other viable
options, which Oregon has yet to consider for Bates, it is not
narrowly tailored to preclude Bates from adopting any child
based on her religious objections to § 413-200-0308(2)(k).
III
For the reasons we have explained, Bates has
demonstrated a likelihood of success on the merits of her free
speech and free exercise claims. 4 See Winter, 555 U.S. at
20. Bates has also demonstrated a likelihood of irreparable
harm, because “[i]t is axiomatic that ‘the loss of First
Amendment freedoms, for even minimal periods of time,
4
To the extent Bates raises a facial challenge, the record on that broader
issue is undeveloped. See Moody v. NetChoice, LLC, 603 U.S. 707, 726
(2024). This matter may be further explored on remand. We have
addressed only an as-applied challenge concerning Bates.
58 BATES V. PAKSERESHT
unquestionably constitutes irreparable injury.’” Fellowship
of Christian Athletes, 82 F.4th at 694 (quoting Roman Cath.
Diocese of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per
curiam)); see also id. (“‘Irreparable harm is relatively easy
to establish in a First Amendment case’ because the party
seeking the injunction ‘need only demonstrate the existence
of a colorable First Amendment claim.’”) (quoting Cal.
Chamber of Comm. v. Council for Educ. & Research on
Toxics, 29 F.4th 468, 482 (9th Cir. 2022)). The remaining
preliminary injunction factors—the balance of the equities
and the public interest—merge and further favor Bates. See
id. at 695.
We reverse and remand for the district court to enter a
preliminary injunction enjoining ODHS from applying §
413-200-0308(2)(k) to Bates in deeming her ineligible for
certification as an adoptive parent.
REVERSED AND REMANDED.
CLIFTON, Circuit Judge, dissenting:
This case is about children. Specifically, it is about
young children for whom the State of Oregon has assumed
responsibility, in lieu of parents or other relatives, often from
sad or tragic circumstances. They are “wards of the state,” in
the ancient legal term, defined as “[s]omeone who is housed
by, and receives protection and necessities from, the
government.” Black's Law Dictionary (12th ed. 2024).
Oregon is willing to place those children in the care and
custody of responsible adults, who act as foster parents,
often with financial support from the state, and sometimes
with a hope and even expectation that the arrangement can
BATES V. PAKSERESHT 59
lead to a permanent home for the children through adoption.
Up to the point of adoption, Oregon remains ultimately
responsible for those children, charged with looking out for
the best interests of those children.
Jessica Bates, a widowed mother of five, wants to take
custody of two of those young children, each under the age
of nine, as a foster parent. That is laudable. The problem, in
my view, is that she wants to take them only on her terms.
Oregon has concluded that children for whom it is
responsible should be placed only with adults who promise
to respect the gender identity of the child as the child gets
older and develops such identity. That identity is not clear at
the young ages of children under nine. See below at 32 n.8.
Oregon has determined, as indicated by research, see below
at 30–31, that a not insignificant percentage of those children
will develop identities that may not match the biological
genders recognized at birth. As a result, Oregon requires a
commitment from a prospective foster parent, before that
person is given custody of a child for whom Oregon is
responsible, that the applicant will not act contrary to the
child’s interest.
Bates refused to make that commitment. To the contrary,
she affirmatively told Oregon that she would use gender
pronouns that she preferred even if the child preferred
something else (“he,” for instance, rather than “she” or
“they”) and would not take the child to medical
appointments for treatments that the state concluded should
be provided for that child.
Bates contends that the state violates her First
Amendment rights to free speech and free exercise of
religion by declining to approve her application to take
60 BATES V. PAKSERESHT
custody and foster a child who is a ward of the state. The
majority agrees. I do not.
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.
I respectfully dissent.
I. Free Speech
The conclusions of my colleagues are based on their
determination that Oregon’s denial of Bates’s application to
take custody of children who are wards of the state is subject
to the very demanding standard of strict scrutiny review with
regard to both her free speech and free exercise of religion
claims. Strict scrutiny applies to government actions that
compel speech or restrict it on the basis of content or
viewpoint. Green v. Miss United States of Am., LLC, 52
F.4th 773, 791 (9th Cir. 2022). A threshold question is
whether the facts before us trigger that principle at all. In my
view, the majority’s answer in the affirmative rests on an
incomplete picture and an unbalanced interpretation of the
record.
BATES V. PAKSERESHT 61
A. The ODHS Rule as Applied to Bates
The majority purports to address only Bates’s as-applied
challenge and not her facial challenge. Maj. Op. at 57 n.4.
We should, therefore, anchor our analysis to the reasons
actually given by the Oregon Department of Human Services
(“ODHS”) for denying Bates’s application, not hypothetical
reasons that the majority imagines Oregon might give with
respect to hypothetical applicants.
The record offers a clear answer. After Bates received
the certificate for completing the Resource and Adoptive
Families Training (“RAFT”), she emailed Cecilia Garcia,
her ODHS certifier, and stated that she “cannot support this
behavior” pertaining to non-traditional gender identities and
“would not encourage them in this behavior.” Garcia
discussed the email with her supervisor and decided that she
should contact Bates “to discuss ODHS Certification
policies and . . . examples of situations that might occur with
a child or youth in care.” Garcia proceeded to do just that in
her phone call with Bates. She affirmed the state’s
expectation that foster care applicants respect every child’s
gender identity, gender expression, and sexual orientation.
She asked Bates how she would respond if ODHS asked her
to take a child to receive hormone shots for gender transition.
Bates answered that she would not take the child to such
medical appointments and that she considered them to be
“child abuse.” It was after Bates gave this answer that Garcia
informed Bates that Bates was “disqualified from
proceeding with the Home Study.” Subsequently, ODHS
sent Bates a letter denying her application and explaining the
reasons for doing so: Bates indicated that she “would not
support [foster children’s] lifestyle or encourage any
behavior related to their sexual orientation or gender identity
or expression” and “would not take them to the appointment
62 BATES V. PAKSERESHT
[for hormone shots].” These facts demonstrate that Bates’s
refusal to take a child to hormone therapy upon ODHS’s
request was a key basis of the state’s assessment that she
failed to comply with Oregon Administrative Rule § 413-
200-0308(2)(k) (“Rule”).
In keeping with the fundamental principle of child
custody law, Oregon law requires ODHS to “protect the best
interests of children in foster homes.” Or. Rev. Stat.
§ 418.640(1); see Robert H. Mnookin, Child-Custody
Adjudication: Judicial Functions in the Face of
Indeterminacy, 39 L. & CONTEMP. PROBS. 226, 228 (1975).
That duty is strongest with respect to wards placed under the
state’s custody, as is the case with Oregon’s foster care
system at issue here. See Lipscomb By & Through DeFehr v.
Simmons, 962 F.2d 1374, 1379 (9th Cir. 1992) (“Once the
state assumes wardship of a child, the state owes the child,
as part of that person’s protected liberty interest, reasonable
safety and minimally adequate care and treatment
appropriate to the age and circumstances of the child.”). The
state bears the responsibility “to safeguard the well-being of
this helpless and vulnerable population.” Tamas v. Dep't of
Soc. & Health Servs., 630 F.3d 833, 843 (9th Cir. 2010).
The flip side of this heightened responsibility is that the
rights of foster parents must sometimes yield to the state’s
overriding interest in the children’s welfare. See Smith v.
Org. of Foster Fams. For Equal. & Reform (OFFER), 431
U.S. 816, 845–46 (1977) (explaining that foster parents’
liberty interests in family privacy were limited because the
foster family was “an arrangement in which the State has
been a partner from the outset”); Backlund v. Barnhart, 778
F.2d 1386, 1389 (9th Cir. 1985) (“[F]oster parents do not
enjoy the same constitutional protections that natural parents
do.”). In particular, foster parents cannot demand to take a
BATES V. PAKSERESHT 63
child under the state’s care and simultaneously claim the
right to treat the child unfettered from the state’s terms.
A long line of cases affirms that Oregon has broad police
powers to regulate in public health and safety. See, e.g.,
Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905). The
state’s interest in the protection of children further enhances
such powers. See Prince v. Massachusetts, 321 U.S. 158,
166 (1944) (“Acting to guard the general interest in youth’s
well being, the state as parens patriae may restrict the
parent’s control by requiring school attendance, regulating
or prohibiting the child’s labor, and in many other ways.”
(footnotes omitted)). A state is permitted to require
compulsory vaccination for children attending public
schools, impose child labor laws that limit parents’ religious
training of their children, and proscribe the distribution of
child pornography. See Zucht v. King, 260 U.S. 174, 176–77
(1922); Prince v. Massachusetts, 321 U.S. at 166–67 (1944);
New York v. Ferber, 458 U.S. 747, 756–57, 765 (1982). In
this instance, of course, Oregon does not seek to impose any
requirements on parents generally, but it should have the
authority to determine which adults meet its requirements to
take foster custody of Oregon’s wards.
Oregon’s decision to ensure that the medical needs of
LGBTQ+ children under its wardship are adequately met
lies at the heart of the confluence of these well-established
state powers. The ODHS Rule, as applied to Bates, reflects
the state’s judgment that proper support for a child’s sexual
orientation and gender identity is necessary to protect the
child’s health and safety. The RAFT materials illuminate the
health concerns that underlie the state’s denial of Bates’s
application. They stress the importance of promoting
LGBTQ+ youths’ “health and well-being,” helping them
“feel safe,” and preventing the various “negative mental
64 BATES V. PAKSERESHT
health outcomes” that can follow from their experience of
stigma. The materials specifically caution against subjecting
an LGBTQ+ youth to “conversion therapy.”
In addition to the RAFT materials, Oregon has presented
studies that attest to the positive impact of gender-affirming
care and, more generally, respectful attitudes toward diverse
gender identities. For example, a 2020 nationwide survey
conducted by the Trevor Project, a nonprofit organization
dedicated to suicide prevention for LGBTQ+ youths,
showed that use of preferred pronouns and access to gender-
affirming clothing had a significantly positive impact on the
attempted-suicide rates of LGBTQ+ youths. 1 This emphasis
on the well-being of foster children who develop LGBTQ+
tendencies also aligns with other Oregon laws and
administrative rules. See Or. Rev. Stat. § 418.046(3)(f)(C)
(providing that the Child Welfare Equity Advisory
Committee may recommend policies serving youths in
“minority gender identity communities”); Or. Admin. R.
§ 413-200-0335(1)(b)(A) (requiring ODHS to consider
“gender, gender expression, and gender identity” of foster
children in “determining appropriate sleeping
arrangements”); Or. Admin. R. § 413-200-0352(1)(d)
(requiring resource family to provide foster child with
1
The 2024 version of this survey tracks these findings. Depending on
the degree of acceptance by people in the surrounding communities, the
attempted-suicide rates of LGBTQ+ youths varied by as many as 12
percentage points. See TREVOR PROJECT, 2024 U.S. NATIONAL SURVEY
ON THE MENTAL HEALTH OF LGBTQ+ YOUNG PEOPLE 25 (2024),
https://www.thetrevorproject.org/survey-
2024/assets/static/TTP_2024_National_Survey.pdf. Similarly, the
attempted-suicide rate was 20% for transgender and nonbinary youths if
none of the people they lived with respected their pronouns, but that
number dropped to 11% if all of the people they lived with respected
their pronouns. See id. at 26.
BATES V. PAKSERESHT 65
“adequate clothing that . . . meets the cultural and gender
identity and gender expression of the child”).
As an individual seeking to assume foster responsibility
for children within Oregon’s custody, Bates must honor
Oregon’s own responsibility to its children. No one should
be able, as a matter of right, to require the state to turn over
its wards and treat them in ways that are, in the state’s
judgment, disrespectful and even dangerous. The state is not
required to accept at face value an applicant’s declaration
that she would equally love and accept any child, especially
when there is a clear, fact-based concern that the applicant
would fail to discharge Oregon’s responsibility for that child
by refusing to facilitate medical care that Oregon determined
should be provided.
Bates is, of course, free to disagree with that judgment.
If Bates insists on raising adopted children without ever
having to take them to medical appointments directed by the
state, she can seek adoption through private agencies, which
she says she has not done because they are more expensive
and farther away. Instead, Bates seeks to require Oregon to
turn its wards over to her, even though she told the state that
she would place her personal views about children’s health
above Oregon’s judgment and responsibility, on account of
financial and geographic convenience to her.
At the risk of stating the obvious, we do not sit as a bench
of policy consultants. I frankly have some reservations in my
personal capacity about the wisdom underlying the fine
details of Oregon’s program. Neither my views nor the
majority’s views on the optimal way to protect an LGBTQ+
child’s health and safety should determine the outcome of
this case, however. Oregon, through its elected officials and
political branches, has decided how best to proceed with
66 BATES V. PAKSERESHT
foster placement and treatment of children under its care and
custody. We must defer to the state’s judgment in an area
where the law has traditionally afforded states broad
policymaking authority.
That is all the more true where the regulated conduct at
issue, Bates’s refusal to take a child to certain medical
appointments, does not implicate speech. Such conduct is
more akin to a parent’s refusal to vaccinate a child, which,
as Bates acknowledged during oral argument, “doesn’t bring
up speech issues.” A panel of judges should not interfere
with the implementation of a state-enacted rule that denied a
prospective parent’s foster care application based on her
unwillingness to meet a child’s medical needs.
The majority’s analysis barely addresses this point. 2
Other than in its recounting of the factual background, the
majority only twice alludes to Bates’s objection to medical
2
That omission is presumably attributable to the majority’s belief that
Oregon did not make this argument. Maj. Op. at 26–27 n.2. Respectfully,
I disagree. Oregon’s brief argues that the Rule regulates parental conduct
because it concerns “the provision of childcare to a child” with the “goal
of ensuring the health and well-being of children,” citing our precedents
characterizing medical treatments like conversion therapy as non-speech
conduct. Oregon’s brief further argues that the Rule depends on “the
cooperation of resource parents,” who “stand in the shoes of the state in
providing for the health and well-being of the children.” The
hypothetical question that Garcia posed to Bates represents precisely
such a scenario requiring parental cooperation. During oral argument,
Oregon clarified that Bates’s refusal to facilitate hormone therapy on its
own was a sufficient basis for denying her certification.
More fundamentally, I do not see how a fair reading of the record can
ignore the relevance of Bates’s unwillingness to facilitate the state’s
requested medical appointment. Bates’s own recounting of her
interactions with ODHS reveals that this issue played no small role in
her disqualification, and it was the only specific basis of denial cited by
ODHS in its letter.
BATES V. PAKSERESHT 67
appointments. First, the majority asserts in passing that
parents’ verbal interactions with children predominate over
the conduct of childcare, which can include taking children
to hormone therapy. Maj. Op. at 31. I explain below why the
Rule, if it implicates speech, does so only incidentally. See
Section I.B.2. Second, the majority points out that the
possibility of a child needing such medical appointments is
too speculative for purposes of narrow tailoring. Maj. Op. at
53. The narrow-tailoring requirement presumes, of course,
that strict scrutiny applies—a conclusion that the majority
reaches by ignoring the crucial sentence in ODHS’s denial
letter. Disregarding the mountain of evidence that the Rule
is rooted in concerns for children’s health and even lives, the
majority caricatures the Rule as the state’s bully pulpit for
propagating its normative views on gender identity.
The majority then pivots to engage in what looks
suspiciously like an analysis of a facial challenge, exactly
what it disclaims to be doing. Maj. Op. at 57 n.4. According
to the majority, speech infringement is a “central” feature of
the Rule, which “by definition” restricts speech. Maj. Op. at
26–27. The majority plucks speech-related examples of
recommended conduct from the RAFT materials, such as
using gender-neutral language, displaying symbols friendly
to diverse gender identities, and sharing inspirational stories
of individuals from such backgrounds. Maj. Op. at 27. With
the possible exception of using pronouns, 3 none of these
3
Even regarding pronouns, Bates’s email technically never expressed a
refusal to address a child by the child’s preferred pronouns. Bates relayed
her observation that the RAFT training emphasized that “the host must
respect, accept, and support children whose preferred pronouns &
identity don’t match their biological sex.” She then stated that she
“cannot support this behavior in a child” and that she “would not
68 BATES V. PAKSERESHT
examples specifically featured in Bates’s initial email to
Garcia, the ensuing phone call, or ODHS’s letter. What did
feature was Bates’s refusal to facilitate gender-identity-
related medical treatments for a child.
By holding unconstitutional a valid application of a state
rule primarily on grounds of its hypothetical invalid
applications, the majority illustrates the archetypal risk
associated with facial challenges. See Moody v. NetChoice,
LLC, 603 U.S. 707, 754 (2024) (Thomas, J., concurring in
the judgment) (“Facial challenges conflict with Article III’s
case-or-controversy requirement because they ask a federal
court to decide whether a statute might conflict with the
Constitution in cases that are not before the court.”); id. at
748 (Jackson, J., concurring in part and concurring in the
judgment) (noting that the state laws at issue target some
activities protected by the First Amendment but also
unprotected activities); Broadrick v. Oklahoma, 413 U.S.
601, 610 (1973) (upholding a statute against First
Amendment challenge where plaintiffs did not themselves
engage in protected political expression).
B. The RAFT Materials
Other gaps remain in the majority’s telling of the facts.
In addition to Bates’s refusal to take a child to gender
therapy, ODHS’s letter also cited Bates’s unwillingness to
support a child’s lifestyle and behavior related to sexual
orientation and gender identity. The majority’s exercise in
collecting speech-related examples from the RAFT
materials bears some significance insofar as they help us
construe the more generally worded basis of ODHS’s denial,
encourage them in this behavior.” (emphases added). It is unclear what
exactly Bates meant by that sweeping description.
BATES V. PAKSERESHT 69
although it still does not explain why the majority overlooks
the specific stated basis. Even here, however, the majority
disregards parts of the record that do not fit its analysis.
1. The Advisory Nature of the Materials
The majority first errs by interpreting the RAFT
materials as mandatory, even as it acknowledges that some
guidance is presented as recommendations. Maj. Op. at 27.
The reality is that the RAFT materials are plastered with
“advisory language” through and through. Nat'l Endowment
for the Arts v. Finley, 524 U.S. 569, 581 (1998). Session 3
of the RAFT course, which contains materials most relevant
for the Rule, begins by clarifying its educational purpose,
encouraging applicants to “learn” and “increase their
knowledge” about diverse concepts in sex and gender. The
course reads less like a government-issued order and more
like a school workbook: it proposes themes for learning, lays
out information in readable outlines, and offers fill-in boxes
where course takers can answer interactive questions.
The handouts accompanying Session 3 eliminate any
doubt that the RAFT materials are suggestions, not
commands. One handout is a “guide” for understanding
LGBTQ+ children, which “provides general information”
about ways to support their well-being. A subsection under
this guide offers “Tips for Supporting Children and Youth,”
from which the majority draws several examples that it
recasts as mandatory directions. Another handout is a “quick
tip-sheet” presenting “Easy Do’s” and Easy Don’t’s.” The
majority again takes this tip-sheet out of context and accuses
it of phrasing its tips in the imperative mood. Still another
handout is a different “guide” intended specifically for foster
parents and “written to help families understand how to
provide a safe, supportive, and affirmative home for an
70 BATES V. PAKSERESHT
LGBTQ+ youth in foster care.” The majority’s quotations
from this guide originally appear in bullet points listed for
the parents to “consider.” Maj. Op. at 13. In short, the most
natural interpretation of these materials is that they are
educational resources, not categorical requirements.
Nonetheless, without pointing to any provision that
conditions the approval of a prospective parent’s application
on strict adherence to the RAFT materials, the majority
asserts that applicants “must reinforce” and “must actively
promote” Oregon’s viewpoint. Maj. Op. at 26, 28. In reality,
Oregon requires only that an applicant complete the RAFT
training, after which the applicant receives a certificate as
proof of completion. The applicant is neither tested for her
understanding of the course nor asked to swear to obey the
guidelines. To the contrary, Bates received a certificate after
she completed the program. Nothing in the record suggests
that Bates was at any point required to reinforce or promote
the RAFT materials’ viewpoints. The majority concedes
elsewhere, as it must, that there is “no indication that an
applicant must affirmatively certify her willingness to
comply with § 413-200-0308(2)(k).” Maj. Op. at 14.
The majority also claims that the “state’s own denial of
Bates’s application shows that the state does not interpret its
policy and the RAFT guidelines to be merely advisory.”
Maj. Op. at 28. That assertion might be justified if the ODHS
letter cited Bates’s non-compliance with the RAFT materials
as a basis of the denial. It did not. The letter instead cited
Bates’s unwillingness to support and encourage gender-
identity-related behavior. Bates volunteered that she would
not do what § 413-200-0308(2)(k) requires: to “respect,
accept, and support the . . . sexual orientation, gender
identity, gender expression . . . of a child” and to “provide
BATES V. PAKSERESHT 71
opportunities to enhance the positive self-concept and
understanding of the child.”
Despite the majority’s focus on the RAFT handouts, they
are not the relevant state action in this case. The handouts
may help elucidate the meaning of the Rule but are not
themselves state-enacted regulations. The relevant state
action is ODHS’s application of § 413-200-0308(2)(k) to
Bates, as effectuated by the denial letter. That letter contains
no evidence that Oregon used the RAFT guidelines as a
checklist for evaluating Bates’s application.
It does not matter that the RAFT materials are “broadly
reflective of a particular viewpoint on sexual orientation and
gender identity.” Maj. Op. 27–28. The government is
allowed to speak its views, so long as it does not compel
individuals to speak the same. See Pleasant Grove City v.
Summum, 555 U.S. 460, 467 (2009). To be sure, government
speech can cross the line from persuasion to coercion when
accompanied by “the threat of invoking legal sanctions” or
other adverse action. Bantam Book, Inc. v. Sullivan, 372 U.S.
58, 67 (1963). But no sign of any such coercion is present
here. Again, neither Garcia’s phone call nor ODHS’s letter
faulted Bates for objecting to any of the speech-related tips
from the RAFT materials. Oregon “necessarily takes a
particular viewpoint and rejects others” in deciding how to
best run its foster care system. Matal v. Tam, 582 U.S. 218,
234 (2017). The record does not support a First Amendment
claim that Bates was required to say things with which she
disagreed.
2. Incidental Implication of Speech
In addition to reinterpreting the RAFT materials as
mandatory requirements, the majority also errs by
exaggerating the degree to which they implicate speech.
72 BATES V. PAKSERESHT
Even accepting that the RAFT materials function as a
checklist-type of rubric by which ODHS assesses an
applicant’s compliance with the Rule, common sense and a
close review of the materials reveal that any impact on
speech is incidental at most. I do not dispute that some
examples from the guidelines affect speech. But I disagree
that these examples are “central,” “imperative,” and
“prominent” features of the Rule. Maj. Op. at 12, 26. All of
those descriptors require us to look at the speech-related
examples in the context of the overall implementation of the
Rule, and in particular, alongside other examples that
definitively do not concern speech.
The most obvious way in which one can respect, accept,
and support a child’s gender identity and sexual orientation
through something other than speech is, of course, the very
conduct cited by Oregon in denying Bates’s foster parent
application: taking a child to appropriate medical
appointments. Given the RAFT materials’ overarching
emphasis on health, facilitating medical care seems crucial
to the Rule’s design. Not subjecting the child to “conversion
therapy” would be an equally important way to comply with
the Rule. Cf. Tingley v. Ferguson, 47 F.4th 1055, 1064 (9th
Cir. 2022) (“As of 2015, every major medical, psychiatric,
psychological, and professional mental health organization
opposes the use of conversion therapy.”).
Beyond medical care, more everyday examples of
pertinent conduct include: buying clothes that conform to the
child’s gender identity, sustaining the child’s preferred
grooming habits, taking the child to gender-inclusive
restrooms, signing the child up for appropriate sports teams,
inviting the child’s LGBTQ+ friends, seeking out additional
educational resources about the LGBTQ+ community, and
so forth. Indeed, Bates acknowledged in her own declaration
BATES V. PAKSERESHT 73
that she would not be willing to engage in several of these
examples. See Declaration of Jessica Bates in Support of
Plaintiff’s Motion for Preliminary Injunction ¶ 65
(describing how her faith influences her views on “facilities
use, attire, and sports participation”), ¶ 115 (“I cannot
support a child’s desire to dress or otherwise express
themselves as the opposite sex.”).
Other than a passing acknowledgement that “Oregon’s
policy does regulate parents’ conduct to some extent,” the
majority does not deal with the above examples. Maj. Op. at
30. Instead, the majority zeroes in on a small subset of the
RAFT materials and treats it as exhausting the meaning of
the Rule. The majority curates most of its examples from a
handful of pages that purport to offer suggestions about how
to support LGBTQ+ youth. Those few pages come from
supplementary handouts attached to a single session of the
RAFT course, the bulk of which is dedicated to explaining
basic concepts in gender identity, busting misconceptions,
and summarizing pertinent facts and research about the
health of LGBTQ+ youths. Even the tip sections themselves
include many examples of non-speech conduct. The record
does not support the majority’s bald assertion that regulation
of speech predominates in the Rule’s application.
C. Determining the Appropriate Tier of Scrutiny
After filling in the gaps in the majority’s review of the
record, a different picture of the facts emerges. Bates’s
application was denied partially if not primarily because of
her unwillingness to take a child to gender therapy if Oregon
determined that such treatment should be provided to a child
placed in Bates’s foster care. The guidelines from the RAFT
materials were advisory in nature and none of them were
cited as a basis for denying Bates’s application. And many
74 BATES V. PAKSERESHT
examples of the Rule’s applications govern conduct, not
speech. In light of these facts, I conclude that intermediate
scrutiny is the toughest level of review that could properly
be applied to the Rule with respect to Bates’s as-applied free
speech challenge.
State restrictions and compulsions of speech on the basis
of content or viewpoint are presumptively unconstitutional
and subject to strict scrutiny. Reed v. Town of Gilbert, 576
U.S. 155, 163 (2015); Rosenberger v. Rector & Visitors of
Univ. of Va., 515 U.S. 819, 829 (1995). On the other hand,
“content-neutral restrictions that impose an incidental
burden on speech” receive an “intermediate level of
scrutiny.” Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622,
662 (1994) (Turner I). “[I]t has never been deemed an
abridgment of freedom of speech or press to make a course
of conduct illegal merely because the conduct was in part
initiated, evidenced, or carried out by means of language,
either spoken, written, or printed.” Rumsfeld v. Forum for
Acad. & Institutional Rts., Inc., 547 U.S. 47, 62 (2006)
(FAIR) (quoting Giboney v. Empire Storage & Ice Co., 336
U.S. 490, 502 (1949)); see United States v. O'Brien, 391 U.S.
367, 376–77 (1968).
As I explained above, the facts demonstrate that any
potential burden on speech created by the Rule is incidental. 4
Even considering the Rule on its face, the full gamut of its
applications mostly concerns the non-expressive conduct of
child rearing. The many examples of non-expressive conduct
4
The district court concluded that the application of the Rule inherently
restricted Bates’s speech. This being “[t]he district court’s interpretation
of the underlying legal principles,” we are not bound to defer to it. Sw.
Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 918 (9th Cir.
2003) (en banc).
BATES V. PAKSERESHT 75
contradict the majority’s assertion that speech infringement
is a central feature of the Rule. That conclusion is only
stronger as applied to Bates. The most specific basis cited by
ODHS in its denial letter—and the basis that prompted
Garcia’s conclusion that Bates was disqualified—was
clearly an example of conduct, relating to Bates’s
unwillingness to facilitate medical appointments for a child.
The majority fails to recognize the similarities between
this case and FAIR. The Solomon Amendment at issue in
FAIR “affect[ed] what law schools must do—afford equal
access to military recruiters—not what they may or may not
say.” FAIR, 547 U.S. at 60. The Supreme Court reached this
conclusion despite the fact that the Solomon Amendment
regulated the law schools’ recruiting assistance, which
“often include[d] elements of speech” such as sending e-
mails or posting bulletin board notices. Id. at 61. As the
majority puts it, recruiting is “accomplished in good measure
through speech.” Maj. Op. at 31. FAIR thus cautions against
an atomistic view of speech, lest any literal use of words
accompanying conduct shield it from government
regulation. See id. at 62 (explaining that an employment law
prohibiting racial discrimination should not be treated as
regulating speech even if it requires an employer to take
down a sign reading “White Applicants Only”); see also
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978)
(listing examples of “communications that are regulated
without offending the First Amendment”); cf. Matsumoto v.
Labrador, 122 F.4th 787, 813–14 (9th Cir. 2024) (explaining
that the First Amendment does not protect speech integral to
unlawful conduct).
That is why it is not enough for the majority to point out
that respecting, accepting, and supporting a child’s identity
include elements of speech. The majority does so without
76 BATES V. PAKSERESHT
accounting for the Rule’s non-speech elements. What’s
more, the majority also leaves out some speech-related
RAFT guidelines that no one can reasonably question as
constitutionally suspect. For example, applicants are advised
to “[l]et youth in your care know that you are willing to
listen” and to “[c]heck with the youth in your care to see
whether they feel comfortable at agency-recommended
service providers.”’ These suggestions—or mandatory
directions, as the majority would have it—involve speaking.
Can Oregon’s foster care program violate the First
Amendment on account of these anodyne, commonsensical
instructions about parenting?
It is hard to see how the Rule would alter Bates’s speech
on the basis of viewpoint or content. Bates can continue to
espouse her views on sexual orientation and gender identity,
just as the law schools in FAIR were “free under the statute
to express whatever views they may have on the military’s
congressionally mandated employment policy.” FAIR, 547
U.S. at 60. To the extent that the obligation to respect,
accept, and support a child’s sexual orientation and gender
identity gives Bates additional considerations to be mindful
of when talking to the child, those considerations bear on “an
arrangement in which the State has been a partner from the
outset.” Smith, 431 U.S. at 845. Just as private parents might
instruct a caretaker to treat their child a certain way, Oregon
requires foster parents to respect, accept, and support the
state’s wards and suggests ways to do so, some of which
touch on the use of language.
These suggestions about parent-to-child interactions are
a far cry from the usual suspects fended off by the First
Amendment. Oregon is not trying to control “an existing
medium of expression” and “distort its usual functioning.”
Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 543 (2001).
BATES V. PAKSERESHT 77
Oregon is not trying to restrain a “public utterance” in “the
arena of public discussion.” Cohen v. California, 403 U.S.
15, 23–24 (1971). And Oregon is not trying to “correct the
mix of speech” in the marketplace of ideas. Moody, 603 U.S.
at 740.
The closest example of speech infringement that Bates
can offer in her as-applied challenge is the RAFT materials’
recommended use of a child’s preferred pronouns. In order
to say that the regulation of pronoun usage is a content- or
viewpoint-based restriction, however, we first need to be
able to ascribe a content or viewpoint to the utterance of
pronouns. The majority suggests that using a child’s
preferred pronouns would “reinforce the state’s perspective
of sexuality and gender identity as evolving concepts” and
amount to a “withholding [of] contrary views.” Maj. Op. 26.
Perhaps—but perhaps not. Pronouns are ubiquitous in daily
speech. Surely the majority does not believe that every
utterance of “he” or “she” conjures with it a subtextual
commentary on gender identity.
Even in the case of gender-identity-based pronouns,
especially when directed to the foster child, it is hardly
obvious that such usage automatically embodies “[a]n intent
to convey a particularized message” and that “in the
surrounding circumstances the likelihood was great that the
message would be understood by those who viewed it.”
Spence v. Washington, 418 U.S. 405, 410–11 (1974).
Oregon’s concern seems particularly focused on the child for
whom it bears responsibility and not on Bates’s ability to
express her personal opinions generally. Some parents might
use pronouns when speaking to a child as a way to opine
about gender identity. But others might use pronouns to
convey respect and affection for the child, though their
personal views of gender identity were different. They might
78 BATES V. PAKSERESHT
believe, as does Oregon based on its reading of the scientific
literature, that conveying such respect has a substantially
positive impact on an LGBTQ+ child’s health while
minimizing risks of anxiety, depression, and even suicide
attempts. Still others might have no sophisticated expressive
intent whatsoever when saying the words “he”, “she”, or
“they.” The point is that the majority is not in a position to
affix a template content to such utterances.
Because the ODHS Rule is a content-neutral regulation
that at most incidentally burdens expression, intermediate
scrutiny should apply. Two analogous contexts from other
areas of First Amendment law provide further reasons to
avoid strict scrutiny: regulations of professional speech and
government-employee speech. While each of these contexts
is not a square fit, the Rule has enough similarities such that
our analysis can benefit from their underlying principles.
Indeed, lifting a straitjacket approach to the First
Amendment and transplanting into the unique context of
state-run foster care systems would be unwise, as it risks
giving short shrift to that population most in need of
government protection yet most easily overlooked by legal
doctrines developed for adults. See May v. Anderson, 345
U.S. 528, 536 (1953) (Frankfurter, J., concurring) (“Children
have a very special place in life which law should reflect.
Legal theories . . . lead to fallacious reasoning if uncritically
transferred to determination of a State’s duty towards
children.”).
Consider first professional speech. In Nat’l Inst. of Fam.
& Life Advocs. v. Becerra, 585 U.S. 755 (2018) (NIFLA), the
Supreme Court refrained from recognizing professional
speech as a separate category for First Amendment purposes
but also “d[id] not foreclose the possibility.” Id. at 767, 773.
More specifically, the Court explained that “States may
BATES V. PAKSERESHT 79
regulate professional conduct, even though that conduct
incidentally involves speech.” Id. at 768. We have
interpreted NIFLA as abrogating “the idea that professional
speech per se receives less protection,” while leaving intact
our holding that regulations of professional conduct
incidentally burdening speech receive rational basis review.
Tingley, 47 F.4th at 1075, 1077 (9th Cir. 2022); see Pickup
v. Brown, 740 F.3d 1208, 1229–31 (9th Cir. 2014),
abrogated in part by NIFLA.
The majority observes, and I agree, that parenting does
not require a similar level of specialized skills and
knowledge possessed by doctors and lawyers. The analogy
is not as wide of the mark as the majority thinks, however.
Our rationale for deferring to state regulations of
professional conduct has never appealed solely to the
sophistication or technicality of the profession’s expertise.
Our deference rested rather on the recognition that states
should have the authority to preserve the functionality of
socially valuable services necessary for the public good. See
id. at 1229 (“Pursuant to its police power, California has
authority to regulate licensed mental health providers’
administration of therapies that the legislature has deemed
harmful.”); Tingley, 47 F.4th at 1083 (“The health
professions differ from other licensed professions because
they treat other humans, and their treatment can result in
physical or psychological harm to their patients.”); Ohralik,
436 U.S. at 460 (“The interest of the States in regulating
lawyers is especially great since lawyers are essential to the
primary governmental function of administering justice, and
have historically been officers of the courts.” (internal
quotation marks omitted)).
Viewed under that metric of comparison, Oregon’s foster
parents similarly discharge the important function of caring
80 BATES V. PAKSERESHT
for children who stand in a “special relationship with the
state.” Tamas, 630 F.3d at 842. These parents may not be
required to have JDs and MDs, but they must be sufficiently
qualified to shoulder the state’s duty to care for the “helpless
and vulnerable population” of the state’s wards. Id. at 843;
see Tingley, 47 F.4th at 1082 (describing a health care
provider’s license as an “imprimatur of a certain level of
competence” (internal quotation marks omitted)). Not unlike
the scalpel of an incompetent surgeon, unqualified parenting
“can result in physical and psychological harm” to children.
Id. at 1083. I do not insist that we treat foster care parents
the same as medical professionals and hence apply rational
basis review here. But the similarity of what lies at stake
counsels greater deference to the state than is afforded by
strict scrutiny. Oregon has determined that the ability to
respect a child’s sexual orientation and gender identity is an
important qualification for a foster parent. It is not our job to
quarrel with that determination.
Next, consider the speech of government employees.
“[W]hen public employees make statements pursuant to
their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer
discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
The rationale for this holding rested on the need for “the
efficient provision of public services” and “the proper
performance of governmental functions.” Id. at 418–19.
Oregon concedes that foster parents are not government
employees. It nonetheless asks us to account for the fact that
a foster parent performs a similar role by standing in the
shoes of the state to care for the children under its wardship.
For me, the comparison is persuasive. Our caselaw does not
treat the label of “government employee” as dispositive. For
BATES V. PAKSERESHT 81
example, in Clairmont v. Sound Mental Health, 632 F.3d
1091 (9th Cir. 2011), we considered whether the plaintiff, an
employee of an independent contractor that offered services
to a municipal court, should be treated as a public employee
for First Amendment purposes. Id. at 1101–02. We phrased
the threshold inquiry as “whether the relationship between
the parties is analogous to that between an employer and
employee and whether the rationale for balancing the
government’s interests in efficient performance of public
services against public employees’ speech rights applies.”
Id. at 1101. Based on the nature of the services involved and
the plaintiff’s role in their provision, we concluded that the
municipal court’s relationship to the plaintiff was
“analogous to that of an employer and employee.” Id. at
1102.
A similarly functionalist approach can inform, without
dictating, our analysis of Bates’s position. Bates did not seek
private adoption agencies. She seeks to become a state-
certified foster parent who provides services essential to
Oregon’s responsibility to “protect the best interests of
children in foster homes.” Or. Rev. Stat. § 418.640(1).
ODHS exerts control over the pool of candidate parents at
the front end by conducting home studies, background
checks, and trainings. And ODHS evidently retains some
direction over the parents after a child’s placement by, for
example, asking them to take the child to medical
appointments. 5 See Or. Admin. R. § 413-200-0260(8)(c).
5
The ODHS website offers more examples of the state’s continuing
control and supervision. Addressing a question about the kind of support
available for a foster parent, the Frequently Asked Questions page
explains that caseworkers make monthly contacts, including visiting the
82 BATES V. PAKSERESHT
These controls do not rise to the level of the government’s
supervision of its employees, but they are necessary for
Oregon’s foster care system to properly function to the
benefit of a population in great need of care.
When Oregon’s foster parents address foster children in
a way that complies with § 413-200-0308(2)(k), they do so
pursuant to their roles as the state’s foster resources. This
compelling responsibility echoes the need to “arrive at a
balance” between a private citizens’ interests “in
commenting upon matters of public concern” and the state’s
interest “in promoting the efficiency of the public services.”
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009) (quoting
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). I find
it hard to believe that a parent’s use of a child’s preferred
pronouns, particularly when speaking with that child or in a
context the child is aware of, is the usual or even a plausible
way in which the average citizen makes comments on a
matter of public concern.
Ultimately, the analogues of professional speech and
government-employee speech do not impose on us doctrinal
formulas. They are helpful repositories of insights into how
our legal system balances the core value of free speech on
the one hand and “sound principles of federalism and the
home every other month and spending time with the child in care; the
designated certifier will visit the home at least once every six months;
and the state will continue to supply educational resources and support,
including respite care that allows the foster parent to take a break. OR.
DEP’T OF HUM. SERVS., How to Become A Certified Resource Parent,
Frequently Asked Questions (last accessed July 16, 2025),
https://www.oregon.gov/odhs/foster-care/Pages/faq.aspx. ODHS also
explains that a foster parent must discuss travel plans with the child’s
caseworker and, if travelling out of state, obtain prior written approval.
Id.
BATES V. PAKSERESHT 83
separation of powers” on the other. Garcetti, 547 U.S. at
423. Free speech is the cornerstone of a healthy democracy.
For that same reason, the First Amendment does not equate
to a license for unlimited judicial intervention into the states’
policies on their most vital public functions.
In discharging our duty to enforce the First Amendment,
we sometimes face difficult line-drawing puzzles in
delineating the proper scope of the First Amendment’s
protection. At what point does a regulation of conduct
primarily, as opposed to incidentally, implicate speech?
When does the meaning of a novel linguistic practice grow
clear enough that a panel of judges can confidently
determine the content it embodies? Just how much disparate
impact upon religion is permissible before a law loses
neutrality? These questions may occasionally nudge courts
to wade into empirical speculations and sociological
judgments beyond our proper institutional role. Precisely
because First Amendment rights can override the democratic
process, we must proceed with caution, lest the
constitutional provision turn into a blunt hammer by which
we quash politically accountable decisions. The ODHS
Rule, duly enacted pursuant to Oregon’s political process,
reflects the state’s judgment about how best to protect
children under its custody. The Rule regulates the conduct of
parents and does not affect their speech based on content or
viewpoint beyond offering recommendations about
communicating with foster children. The most stringent
review we can fairly apply in this context is intermediate
scrutiny.
D. Applying Intermediate Scrutiny
A content-neutral regulation survives intermediate
scrutiny “if it advances important governmental interests
84 BATES V. PAKSERESHT
unrelated to the suppression of free speech and does not
burden substantially more speech than necessary to further
those interests.” Turner Broad. Sys., Inc. v. FCC, 520 U.S.
180, 189 (1997) (Turner II). The regulation “‘need not be the
least restrictive or least intrusive means’ of serving that
interest.” Porter v. Martinez, 68 F.4th 429, 443 (9th Cir.
2023) (quoting Ward v. Rock Against Racism, 491 U.S. 781,
798 (1989)).
It is unquestionable that Oregon has an important—
indeed, “compelling,” Ferber, 458 U.S. at 757—interest in
protecting the health and safety of children under its legal
custody. According to a report by Oregon’s Department of
Education, 40% of Oregon youths who were ever placed in
foster care identified as LGBTQ+. See OFF. OF RSCH.,
ASSESSMENT, DATA, ACCOUNTABILITY, AND REP., OR.
DEP’T OF EDUC., KEY DATA POINTS FOR STUDENTS
EXPERIENCING FOSTER PLACEMENT 7 (2025),
https://www.oregon.gov/ode/reports-and-
data/taskcomm/Documents/Key%20Data%20Points%20for
%20Students%20Experiencing%20Foster%20Placement.p
df. The rates at which Oregon’s LGBTQ+ youths aged 13 to
24 experienced mental health problems track or slightly
exceed the nationwide numbers: 41% seriously considered
suicide within the past twelve months, 14% attempted
suicide, 66% reported experiencing symptoms of anxiety,
and 57 % reported experiencing symptoms of depression.
See TREVOR PROJECT, 2024 SURVEY ON THE MENTAL
HEALTH OF LGBTQ+ YOUNG PEOPLE IN OREGON 2 (2024),
https://www.thetrevorproject.org/state-reports-oregon-
2024/; cf. TREVOR PROJECT, supra note 1, at 2, 6 (showing
the nationwide survey’s counterpart rates as, respectively,
39%, 12%, 66%, and 53%).
BATES V. PAKSERESHT 85
The Rule advances Oregon’s important interest by
requiring foster care applicants to be able to respect, accept,
and support a child who belongs to a particularly vulnerable
group by virtue of their sexual orientation and gender
identity. Oregon submitted exhibits to the district court
showing that gay and transgender teens who were rejected
by their parents or caregivers faced disproportionately high
risks of mental health problems upon reaching adulthood—
for example, by being more than eight times as likely to have
attempted suicide, or nearly six times as likely to report
depression. See CAITLIN RYAN, FAM. ACCEPTANCE PROJECT,
SUPPORTIVE FAMILIES, HEALTHY CHILDREN: HELPING
FAMILIES WITH LESBIAN, GAY, BISEXUAL & TRANSGENDER
CHILDREN 5 (2009). Conversely, familial acceptance had a
significant positive impact. Among other things, it could
reduce the rate of attempted suicide from 56.8% for
LGBTQ+ youths reporting low levels of family acceptance
to 30.9% for those reporting high levels of family
acceptance. See Caitlin Ryan et al., Family Acceptance in
Adolescence and the Health of LGBT Young Adults, 23 J.
CHILD & ADOLESCENT PSYCHIATRIC NURSING 205, 208
(2010).
The Rule does not burden substantially more speech than
necessary because the RAFT guidelines pertain only to
parents’ communications with foster children without
making similar suggestions about speech in other contexts.
In arguing otherwise, Bates complains that ODHS
needlessly blocked her certification up front when it could
conceivably resolve the problem at the back end by matching
her with compatible children. As the district court properly
noted (and as the majority recognizes), however, Oregon has
explained its important interest in protecting children who
may develop their LGBTQ+ identities only after placement.
86 BATES V. PAKSERESHT
That interest is relevant here because Bates seeks to adopt
children under the age of nine, well before the average age
at which children become aware of nonconforming gender
identities. 6 Oregon has decided to avoid the risk of a foster
placement of a young child that turns out badly by seeking
to ensure that the potential foster parent can properly support
an LGTBQ+ child, if the foster child develops in that
manner, as some will.
It is no answer to point to alternative programs from
other states or the federal government. Those programs
utilize post-placement check-ins at foster homes to monitor
a family’s continued ability to care for LGBTQ+ children or
to notify LGBTQ+ children of more compatible placements.
See Maj. Op. at 55–57. But the specific details of how a state
runs its foster care system will differ from jurisdiction to
jurisdiction, affected as they are by variables such as budget,
human resources, the pool and makeup of children under
state custody, and of course the state’s policy commitment
towards protecting LGBTQ+ children. It is not clear from
where the majority draws its confidence to declare that the
additional strain on resources from more frequent
monitoring would be trivial. We are not a three-person
super-legislature. The majority effectively demands that
Oregon revise its policy to resemble programs whose
6
According to a study in the record, the average age at which adolescents
realized that they were gay was a little over 13. Other surveys similarly
place the average age of initial awareness about one’s LGBTQ+ identity
at around 14. See, e.g., Justin McCarthy & Rachael Yi, LGBTQ+ Adults
Are Coming Out at Younger Ages Than in the Past, GALLUP (July 26,
2024), https://news.gallup.com/poll/647636/lgbtq-adults-coming-
younger-ages-past.aspx; Jerel P. Calzo et al., Retrospective Recall of
Sexual Orientation Identity Development Among Gay, Lesbian, and
Bisexual Adults, 47 DEV. PSYCH. 1658 (2011).
BATES V. PAKSERESHT 87
operational details the majority prefers. In any case, the
presence of less intrusive means is not fatal under
intermediate scrutiny.
Because the ODHS Rule advances an important state
interest without burdening more speech than necessary, I
would affirm the district court’s denial of preliminary
injunctive relief as to Bates’s as-applied free speech
challenge. 7
II. Free Exercise of Religion
I now turn to Bates’s free exercise claim. The majority
again applies strict scrutiny after concluding that the Rule is
neither neutral nor generally applicable. In my view, the
Rule is both neutral and generally applicable.
A. Neutrality
Neutrality concerns whether “the object of a law is to
infringe upon or restrict practices because of their religious
motivation.” Church of Lukumi Babalu Aye, Inc. v. City of
Hialeah., 508 U.S. 520, 533 (1993). Our assessment of
neutrality can depend on several factors, including “the
historical background of the decision under challenge, the
specific series of events leading to the enactment or official
policy in question, and the legislative or administrative
history.” Id. at 540. In addition, “the effect of a law in its real
operation is strong evidence of its object,” although “adverse
impact will not always lead to a finding of impermissible
7
I would also affirm the denial as to Bates’s facial overbreadth
challenge. For the same reasons that the Rule at most incidentally
burdens speech, the Rule does not prohibit “a substantial amount of
protected speech relative to its plainly legitimate sweep.” Matsumoto,
122 F.4th at 795 (quoting United States v. Hansen, 599 U.S. 762, 770
(2023)).
88 BATES V. PAKSERESHT
targeting.” Id. at 535. A key consideration is whether the law
“treat[s] any comparable secular activity more favorably
than religious exercise,” with comparability “judged against
the asserted government interest.” Tandon v. Newsom, 593
U.S. 61, 62 (2021).
We recently considered the relationship between gender
identity and religion in Olympus Spa v. Armstrong, 138 F.4th
1204 (9th Cir. 2025). There, we addressed a Free Exercise
challenge brought by a “women only” Korean spa against a
Washington public accommodations statute that prohibited
discrimination on the basis of sexual orientation, which
Washington law defined as including “gender expression or
identity.” Id. at 1211 (quoting Wash. Rev. Code
§§ 49.60.030(1)(b), 49.60.040(27)). We rejected the
challenge, even though the statute burdened the spa’s
religious expression by compelling it to permit entry to
transgender women. Id. at 1218. The statute was facially
neutral, and nothing in its “historical background,
precipitating events, or legislative history” undermined that
neutrality. Id. (citing Lukumi, 508 U.S. at 540). Nor was
there any evidence that Washington enforced the statute “in
a manner intolerant of religious beliefs.” Id. (quoting Fulton
v. City of Phila., Pa., 593 U.S. 522, 533 (2021)).
The same reasoning applies to Oregon’s Rule. Section
413-200-0308(2)(k) “make[s] no reference to any religious
practice, conduct, belief, or motivation.” Stormans, Inc. v.
Wiesman, 794 F.3d 1064, 1076 (9th Cir. 2015). Bates
identifies nothing in the Rule’s historical background,
precipitating events, or legislative history that undermines
neutrality. A secular applicant who expresses her
unwillingness to support an LGBTQ+ child would also be
denied certification, just like Bates.
BATES V. PAKSERESHT 89
The majority again fails to deal with the actual record,
relying on unevidenced intuitions. First, the majority points
out three places in the RAFT materials that mention religion
as a possible context in which LGBTQ+ youths may feel
unsupported. Based on these three references, the majority
asserts that the ODHS Rule casts religions “as taking a view
contrary to the state on matters of sexuality.” Maj. Op. at 42–
43. I do not follow that leap of logic. Nor does the record
support it. Below are the sentences from which the majority
infers that Oregon references religion as an oppositional
viewpoint:
• “Prejudice and rejection can occur in
social service systems, schools,
community settings, faith-based
communities, and families.”
• “Some youth may also experience bias
associated with their LGBTQI2-S
identity and expression in cultural,
religious, and spiritual settings. However,
these settings can be valuable sources of
strength and important aspects of
LGBTQI2-S youth identity.”
• “Behaviors that openly reject a youth’s
LGBTQ+ identity must be avoided and
not tolerated. This includes slurs or jokes
about gender or sexuality and forcing
youth to attend activities (including
religious activities, sports activities, and
family gatherings) that are openly hostile
or unsupportive of people with diverse
SOGIE.”
90 BATES V. PAKSERESHT
As can be seen, none of these references “singled out”
religion. Lukumi, 508 U.S. at 538. Rather, they listed religion
as one example of several contexts. And religious practices
were not mentioned “because of their religious motivation,”
id. at 533, but because of the possibility that negative impact
to LGBTQ+ youths can occur in religious settings, as they
can in secular settings. One of these references precedes a
clarification that religious settings can also provide positive
environments, dispelling any notion that Oregon intended to
portray religion as an oppositional viewpoint.
The RAFT materials only reinforce the conclusion that
the Rule is neutral in application by showing that it does not
treat comparable secular activities more favorably. Judged
against Oregon’s stated interest, comparable secular
activities mean those secular activities that pose threats to
the health and safety of LGBTQ+ children. See Tandon, 593
U.S. at 63 (pandemic restriction barring at-home gatherings
for religious worship was not neutral because it permitted
secular indoor activities with similar risks of COVID
transmission); Masterpiece Cakeshop v. Colorado C.R.
Comm'n, 584 U.S. 617, 637 (2018) (Colorado Civil Rights
Commission was not neutral when it treated bakers’
conscience-based objections to expressive cakes more
favorably than religion-based objections). The RAFT
materials clarify that the Rule applies equally to religious
settings, family gatherings, schools, or any other
environment that would harm the best interests of a foster
child.
Without engaging with the relevant standard from
Tandon, which concerns differential treatment of religion as
against secular activities, the majority steps in the wrong
direction by claiming that the RAFT materials evince
Oregon’s discrimination as between different religions. The
BATES V. PAKSERESHT 91
majority cites the recent Supreme Court decision in Catholic
Charities Bureau, Inc. v. Wisconsin Labor and Industry
Review Commission, 605 U.S. ----, 145 S. Ct. 1583 (2025).
Maj. Op. at 42. That case concerned the meaning of the
Establishment Clause. Bates never invoked the
Establishment Clause, relied on precedents interpreting it, or
otherwise argued that Oregon plays favorites with religions.
We thus have no occasion to consider the majority’s
argument. See United States v. Sineneng-Smith, 590 U.S.
371, 375 (2020) (“In our adversarial system of adjudication,
we follow the principle of party presentation.”). 8
Second, the majority imports its own perceptions about
religion and gender to compensate for an undeveloped
record. Appealing vaguely to “the reality,” the majority
assumes that the Rule implicates “uniquely religious
matters,” Maj. Op. at 45, and “most obviously” opposes
religious viewpoints. Maj. Op. at 44. The majority diagnoses
that the Rule “overwhelmingly block[s]” individuals with
traditional religious views. Maj. Op. at 44. This forceful
rhetoric sheds more heat than light. What makes the religious
targeting “obvious,” especially when the majority concedes
that one can have non-religious reasons to oppose LGBTQ+
identities? What statistics show the Rule’s “overwhelming”
exclusion of religious applicants? Neither Bates nor the
majority has answered these questions. The majority’s
premises, if true, would have led to the opposite result in
8
In any event, whatever disparate impact created by Oregon’s Rule is a
far cry from the “paradigmatic form of denominational discrimination”
that the Supreme Court balked at. Cath. Charities Bureau, 145 S. Ct. at
1591. Oregon is not distinguishing between religious beliefs that affirm
LGBTQ identity and those that do not, any more than the state of
Washington in Olympus Spa distinguished between religious beliefs
tolerant of transgender individuals and those that are not.
92 BATES V. PAKSERESHT
Olympus Spa. Moreover, the RAFT materials state that
increasingly many religious groups embrace LGBTQ+
youths. Nothing supports construing that language as
Oregon’s cryptic signaling of its favored religions instead of
the helpful tidbit of information it plainly intends to provide.
See Maj. Op. at 41–42.
The insistence that even subtle departures from
neutrality are prohibited only begs the question. Surely the
majority does not mean to insist that any “adverse
impact . . . lead[s] to a finding of impermissible targeting”
and thereby violates neutrality. Lukumi, 508 U.S. at 535.
“The Free Exercise Clause is not violated even if a particular
group, motivated by religion, may be more likely to engage
in the proscribed conduct.” Stormans, 794 F.3d at 1077. If
we accept at face value the majority’s analysis that
traditional understandings of sexuality and gender correlate
most strongly with religion, then a broad swath of non-
discriminatory regulations that even slightly implicate
gender would be on the chopping block. Suppose that ODHS
had a rule requiring foster parents to support the adopted
youth’s career aspirations. One can plausibly imagine that
some religious citizens are more likely to object to this rule
based on sincerely held beliefs that, say, girls should
prioritize domestic roles over professions. This and many
other similar rules would fail the majority’s test for
neutrality.
The majority’s approach of asserting its way to a legal
conclusion is particularly troubling because this case reaches
us at an early stage of litigation. Preliminary injunctive relief
is “an extraordinary remedy,” Winter v. Nat. Res. Def.
Council, Inc., 555 U.S. 7, 22 (2008), in part because it must
be granted on an “undeveloped record,” Stormans, Inc. v.
Selecky, 586 F.3d 1109, 1141 (9th Cir. 2009). It may be that
BATES V. PAKSERESHT 93
as the case progresses, Bates will present concrete evidence
about the Rule’s disproportionate rejection of religious
applicants or the Rule’s administrative history that evinces
discriminatory intent. 9 The appeal of a denial of preliminary
injunction cannot short-circuit the district court’s first
review of such facts, however.
Coming up short on the facts, the majority leans heavily
into a non-binding decision from the district court of the
Eastern District of Washington. That case, Blais v. Hunter,
493 F.Supp.3d 984 (E.D. Wash. 2020), concerned an
analogous set of regulations by the Washington Department
of Children, Youth, and Families. See id. at 989–92, 994–95.
Needless to say, two policies that pursue similar goals can
nonetheless differ in their “real operation,” not to mention
their “historical background” and “legislative or
administrative history.” Lukumi, 508 U.S. at 535, 540. I am
not privy to whether the record before the district court in
Blais warranted its determination that the policies were
religious gerrymanders. I do know that the record before us
does not.
The precedents that do bind us cement my conclusion
that the ODHS Rule is neutral. Whatever the majority’s
perception of the Rule’s adverse impact on religion is, it falls
far short of the kind of evidence that usually shows a lack of
neutrality. In Masterpiece Cakeshop, which reviewed the
Colorado Civil Rights Commission’s cease-and-desist order
against a cake shop owner who refused to sell wedding cakes
9
By faulting Oregon for not identifying any secular applicant who was
denied certification after voicing a similar objection, the majority flips
the burden of proof. Maj. Op. at 44. It is Bates who must establish
likelihood of success on the merits and irreparable injury as the party
requesting a preliminary injunction. Winter, 555 U.S. at 20.
94 BATES V. PAKSERESHT
to same-sex couples, evidence of hostility toward religion
abounded. During the Commission’s formal and public
hearings, its members “endorsed the view that religious
beliefs cannot legitimately be carried into the public sphere
or commercial domain” and described freedom of religion as
“one of the most despicable pieces of rhetoric that people
can use . . . to hurt others.” Masterpiece Cakeshop, 584 U.S.
at 634–35. The Commission’s order also contrasted with
three other occasions in which the state’s Civil Rights
Division favorably treated different bakers’ conscience-
based objections to cakes that disapproved of same-sex
marriage while displaying religious text. Id. at 636. The
signs were similarly telltale in Lukumi. The city ordinance
that purported to prevent animal cruelty was carefully
drafted so that “almost the only conduct subject . . . is the
religious exercise of Santeria church members.” Lukumi,
508 U.S. at 535. The city council’s meetings leading up to
the enactment, as well as contemporary statements by
council members, directly mentioned the Santeria religion in
a negative light. Id. at 541. By contrast, the majority’s
evidence here comes from isolated and general references to
religion from supplementary handouts attached to ODHS’s
training resources. 10
10
The Supreme Court’s recent decision in Mahmoud v. Taylor, 606 U.S.
---, 2025 WL 1773627 (June 27, 2025) should have no bearing on our
analysis of neutrality, if only because the Supreme Court itself said so:
“When the burden imposed is of the same character as that imposed in
Yoder, we need not ask whether the law at issue is neutral or generally
applicable before proceeding to strict scrutiny.” Id. at *22 (referring to
Wisconsin v. Yoder, 406 U.S. 205 (1972)). Bates has never argued that
the burden on her religious exercise resembles that in Yoder—that is, a
substantial interference that “pose[s] ‘a very real threat of undermining’
BATES V. PAKSERESHT 95
B. General Applicability
The ODHS Rule is also generally applicable. As the
preceding section explains, the Rule does not “prohibit[]
religious conduct while permitting secular conduct that
undermines the government’s asserted interests in a similar
way.” Fulton, 593 U.S. at 534; see Lukumi, 508 U.S. at 531
(“Neutrality and general applicability are interrelated . . . .”).
Neither does the Rule retain “a discretionary mechanism to
grant exemptions.” Fellowship of Christian Athletes v. San
Jose Unified Sch. Dist. Bd. of Educ., 82 F.4th 664, 688 (9th
Cir. 2023) (en banc).
The reason for that is simple: the Rule does not grant
exemptions, period. Oregon has made its position
abundantly clear that all foster parent applicants must
respect, accept, and support a foster child’s sexual
orientation and gender identity. The Rule applies generally
because the Rule applies always.
The majority disagrees and insists that the Rule confers
“ample discretion” upon Oregon. Maj. Op. at 50. In the
majority’s eyes, the Rule necessarily invites subjective, ad
hoc judgment by the state’s certifiers. Maj. Op. at 49–50. I
fail to see how. The Rule contains no mechanism by which
the religious beliefs and practices that parents wish to instill in their
children.” Id. at *12 (emphasis added) (quoting Yoder, 406 U.S. at 218).
And Bates cannot argue so, because she seeks here to take the state’s
children. The majority’s cavalier claim that “Bates’s religious exercise
is more than incidentally burdened” does not alter that fact. Maj. Op. at
43 n.3. Even the majority apparently does not commit to its own
proposition, as belied by its need to go through the analysis of neutrality
and general applicability in the first place. See id. at *22 (“[T]he
government is generally free to place incidental burdens on religious
exercise so long as it does so pursuant to a neutral policy that is generally
applicable.”); see also Fulton, 593 U.S. at 533.
96 BATES V. PAKSERESHT
an ODHS certifier individually assesses each applicant. To
repeat: ODHS neither tests a prospective applicant’s
understanding of the RAFT course nor requires an
affirmative promise to obey its guidelines, and all that is
required to receive a certificate—as Bates did—is to
complete the training. Discretion means “[f]reedom in the
exercise of judgment” or “the power of free decision-
making.” Black’s Law Dictionary (12th ed. 2024). The
ODHS Rule requires that a foster parent “support the . . .
sexual orientation, gender identity, gender expression” of a
child. What room for free judgment or decision-making
power did ODHS have with respect to an applicant who
came forward and declared in so many words that “she
cannot support this behavior in a child”?
It may be true that the Rule articulates criteria whose
parameters elude surgical precision. As the majority
acknowledges, however, there is nothing inherently wrong
about a state pursuing a subjective policy. Maj. Op. at 52.
The mere “possibility of uneven application,” Maj. Op. at
49, does not equate to discretion, much less a mechanism of
it. The First Amendment can coexist with the practical limits
of policy enforcement. ODHS does not own a crystal ball
that exposes every applicant who covertly intends to flout
the Rule. 11 Indeed, every law on some level lives with the
11
In any event, it is not at all clear to me that this imperfection of the
Rule’s enforcement exposes a critical flaw. By communicating clearly
the criteria for a foster parent’s eligibility, Oregon gives prospective
applicants a chance to back out before they are charged with the duty to
look after the state’s children. If an applicant so strongly prioritized her
own view of child rearing over actually fostering a child that she
proactively raises her concern, then that is all the more reason why
Oregon should not be obligated to offer up a child under its custody to
her.
BATES V. PAKSERESHT 97
reality that it cannot be implemented to perfection. Cf.
Stormans, 794 F.3d at 1082 (“The mere existence of an
exemption that affords some minimal governmental
discretion does not destroy a law’s general applicability.”).
That does not mean that in every instance the government
can arbitrarily enforce the law to the disproportionate
disadvantage of targeted groups.
The cases that the majority cites for support in fact offer
bright contrast. In Fellowship of Christian Athletes, the
school district granted many individualized exemptions to its
non-discrimination policy, often under the broad pretext of
its equity policy. Id. at 687–88. In Blais, state licensors could
ask during home studies “different or additional questions”
as they deemed appropriate for each case, as part of a
“holistic assessment.” Blais, 493 F. Supp. 3d at 998–99. And
in perhaps the clearest violation of general applicability,
Philadelphia’s Commissioner of the Department of Human
Services in Fulton had “sole discretion” to grant
individualized exemptions. Fulton, 593 U.S. at 535. ODHS
does not have a policy or a built-in review that allows some
applicants to be certified even if they would not respect,
accept, and support a child’s sexual orientation and gender
identity.
The majority makes a U-turn in complaining that the
RAFT materials imbue the state with significant discretion
because “ODHS does not maintain a formal set of criteria,”
Maj. Op. at 49, exactly what it refused to acknowledge in
evaluating Bates’s free speech claim, Maj. Op. at 25–26.
Internal inconsistency aside, that complaint misses the point.
The ODHS Rule, by nature of its content, is not easily
reducible to a rigid list of questions or instructions to be
mechanically applied. Oregon could have replaced its
education and training program with something like that, but
98 BATES V. PAKSERESHT
it made a policy choice not to do so. Imperfect though that
choice may be, we should not coach the state’s policy
implementations under the guise of reviewing the Rule’s
general applicability.
C. Rational Basis Review
Because the Rule is neutral and generally applicable, I
would review it for a rational basis. See Stormans, 794 F.3d
at 1084. The Rule passes constitutional muster if it is
rationally related to a legitimate governmental purpose. Id.
For the same reasons why the Rule survives intermediate
scrutiny against Bates’s free speech challenge, it survives the
more lenient rational basis review.
III. Conclusion
On its face, this case is about a disagreement between a
citizen as prospective foster parent and the state as legal
custodian who hold different views about how to care for
children. Our decision today purports to shield the citizen’s
rights to speech and religion from a sword that the state never
brandished. What the majority does in actuality is to take a
side in that disagreement. Oregon’s considered judgment
regarding the best interests of children under its custody
must give way to this panel’s views. Because we should not
use the First Amendment as a license for policy review, I
respectfully dissent.