Judge rules Tennessee Jewish couple, denied service by state-funded foster home, may proceed with lawsuit

Contributed photo / Knox County couple Elizabeth and Gabriel Rutan-Ram allege a publicly funded Christian child-placement agency refused to serve them because they are Jewish — and that a new Tennessee law permitting the policy violates their constitutional rights.

A Tennessee appellate judge ruled that a Knox County couple may proceed with a lawsuit alleging a state-funded foster care agency denied them services because they are Jewish.

A lower court had previously ruled the couple lacked standing to sue in the case, in which dueling visions of religious liberty face off.

The couple, Elizabeth and Gabriel Rutan-Ram, are challenging a Tennessee law stating that faith-based foster and adoption-placement institutions can, on the basis of a religious objection, deny service to potential clients — and could not lose access to public funds as a result.

In court, the couple and several taxpayer plaintiffs argued the law sanctions unconstitutional religious discrimination.

Attorneys for the state of Tennessee argued the plaintiffs had no standing to sue. In June 2022, a majority on a three-judge panel agreed. On Thursday, however, an appeals court judge said this lower court had erred in its reasoning and that the Rutan-Rams' case should be considered on its merits — a decision cheered by the couple's attorneys.

"Certainly, the courthouse door should not be closed on foster parents and taxpayers who wish to challenge public funding of religious discrimination," Alex Luchenitser, a lawyer who represents the couple, said by phone Friday.

He said the appeals court decision vindicates that principle.

State officials are reviewing the court's decision, Amy Wilhite, one of the attorneys litigating the case for the state, said by email Friday. The state could theoretically appeal to the Tennessee Supreme Court, which could then decide to take up the case, Luchenitser said. Otherwise, the case would return to the three-judge panel to be litigated.

(READ MORE: Denied service by state-funded Christian group, Jewish foster parents challenge controversial Tennessee law)

In 2020, Tennessee Gov. Bill Lee signed a law ensuring publicly funded child-placement agencies could deny services on the basis of a religions objection and retain public funding. Similar laws were passing around the nation, and supporters backed it in the name of religious freedom and hoped to more explicitly protect publicly funded child-placement institutions that wished, for faith-based reasons, to refuse service to prospective LGBTQ+ parents.

The law appears to have been applied in a situation the Rutan-Rams said they experienced in January of 2021. As part of an effort to adopt a boy in Florida, they'd sought a cross-state certification with the Greeneville, Tennessee-based Holston United Methodist Home for Children, which contracted with the Tennessee Department of Children's Services to provide these and other functions.

But as the couple prepared to go for their appointment, an employee of Holston Home informed them the agency would not serve them because they did not share its belief system, the lawsuit said. The Holston Home employee offered alternative options for certification, but the couple said they could not find one in the vicinity of Knox County that would offer the required services and, ultimately, couldn't adopt the Florida child.

In January 2022, backed by the Washington, D.C.-based group Americans United for the Separation of Church and State, the Rutan-Rams named the Tennessee Department of Children's Services in a suit arguing the state's 2020 adoption law on its face unconstitutionally violated religious freedom and that the state should be barred from contracting with Holston Home as long as it discriminated based on religious beliefs of prospective or current foster parents.

The couple, alongside other plaintiffs, including religious leaders, also asserted injury as taxpayers, objecting, the suit said, to the use of public money to fund an agency that discriminates based on religion.

The state, however, argued the couple lacked standing to sue. The Rutan-Rams, state attorneys noted, were ultimately able to foster a child through the state of Tennessee. And the state argued the couple's claims of being harmed by the law were based on future scenarios that were hypothetical and thus inadequate basis for the lawsuit.

The couple's attorneys disagreed, arguing Holston Home's refusal to serve them and the adoption law's apparent sanction of this act both harmed them practically and stigmatized them for being Jews.

(READ MORE: Gov. Lee signs law in Chattanooga to speed up foster, adoption processes following abortion ban)

The arguments were heard under a new Tennessee law that requires special three-judge panels to hear certain constitutional challenges — a process put in place by lawmakers who objected to many such cases being heard by more liberal judges in the state capital of Nashville, where such laws are passed.

The three-judge panels must contain judges from each of the state's three regions — east, middle and west. Two of three trial court judges agreed with the state that the couple lacked standing. And all three agreed none of the taxpayers had standing.

The couple appealed, and Judge Andy Bennett of the Tennessee Court of Appeals on Thursday found that, based on the allegations they made, the couple and plaintiff taxpayers did in fact have standing to sue.

First, he granted that the couple's claim to be disadvantaged in the practical adoption process as Jews constitutes a practical injury.

"In the present case, the Couple has a need of continuing services and has alleged that they plan to foster in hopes of adopting a second child and that, if possible, they prefer to work with a statefunded CPA," he wrote, using an acronym for state contractor agencies like Holston Home. Past courts had found sufficient grounds to sue in similar situations, he wrote.

(READ MORE: Following abortion ban, Tennessee lawmakers aim to make adoption easier)

Another harm the couple claimed was that as a result of the adoption law and Holston Home's actions, they faced stigma as Jews. The lower court had rejected this claim because the adoption law in question has no explicit sectarian preferences.

Bennett, the appeals court judge, again disagreed.

"When a statute subjects a group of people to unequal treatment based upon their religious beliefs, the fact that the statute may allow discrimination against other religious groups does not negate a disfavored group's standing to challenge the statute," he wrote.

Bennett also rejected the lower court's finding that plaintiff taxpayers lacked standing to sue.

Both parties agreed taxpayers have the right to challenge unlawful local spending, said Luchenitser, the Rutan-Ram's attorney. But there was debate about whether taxpayers had the same right at the state level, he said.

Contact Andrew Schwartz at [email protected] or 423-757-6431.