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 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 § 413-200-0308(2)(k) to Bates in deeming her ineligible for
certification as an adoptive parent.

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 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 agencyoversight, 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).

…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 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.

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.”

…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 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.

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.

…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 “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).

…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)).

…For the reasons we have explained, Bates has demonstrated a likelihood of success on the merits of her free speech and free exercise claims. 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, 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.

Read more»

Judge Bress | “Bates v. Pakseresht” | July 24, 2025

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