Sunrise, state crossing legal boundaries

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LOUISVILLE, Ky. (KT) -- A longstanding legal challenge against Sunrise Children’s Services shines a light on why the child services agency is asking for a contract addendum by the state. Sunrise currently provides foster care, residential and therapeutic and counseling services for close to 1,000 children, many of whom are in the custody of the commonwealth.


In a Monday afternoon press conference, Gov. Andy Beshear said the Cabinet for Health and Family Services told him that no accommodation could be given to Sunrise. “I think that is enforced by a settlement agreement from a long-term lawsuit that the Cabinet was faced by folks that thought that certain contracts allowed for the potential for discrimination,” he said.


Beshear’s reference is to the disputed settlement of a long-term case filed in 2000 alleging discrimination. Alicia Pedreira filed suit against Sunrise Children’s Services and the Cabinet of Family and Health Services alleging she was discriminated against because she is a lesbian. The case has been in and out of district and appeals court for 21 years.


Under the reported agreement earlier this spring, the state is allowing the ACLU and Americans United for Separation of Church and State to be given monitoring privileges of contracts awarded by the Cabinet. According to Sunrise attorney John O. Sheller, Sunrise has not agreed to those terms.


“When the government enters into an agreement with third parties, in this case, it's the ACLU and Americans United for Separation of Church and State, when they try to enter into an agreement with those third parties that dictate the terms of the commonwealth's contract with Sunrise, they can't do that in a way that infringes upon Sunrise's rights,” Sheller said.


Sheller said this approach has been attempted twice before, “and Sunrise objects to it and twice before its objections have been sustained and vindicated.” He believes the outcome of the case will be the same this time, and, ultimately, “there is no settlement.”


The governor also pointed to a United States Supreme Court case “that’s been fairly recent and strong.” Beshear is pointing to a June 2020 ruling that said the language of the 1964 Civil Rights Act prohibiting discrimination based on sex also applies to discrimination based on sexual orientation and gender identity as a reason the cabinet could not provide an addendum to the contract with Sunrise.


Sheller says this is “inaccurate in two ways. First, the recent Supreme Court case that he's talking about is the case which held that sexual orientation is covered by Title VII of the Civil Rights Act, but that has absolutely zero to do with contracting,” Sheller said.


Sheller also points to the Religious Freedom Restoration Act, which requires accommodation of free exercise of religion, even in a situation where Title VII would prohibit discrimination against LGBT members.


“I think one of the things that gets lost here in the discussion is that this is a situation that requires a level of tolerance on both sides. It should not be a ‘winner takes all’ kind of outcome,” Sheller said. “Sunrise isn't trying to dictate to the commonwealth and to other agencies that they follow Sunrise's values. But conversely, these other entities and the commonwealth shouldn't dictate to Sunrise that there's only one way to take care of children. There needs to be tolerance on both sides.”


Sheller hopes the Cabinet will remember religious freedom “is a fundamental First Amendment right that's been with us since the founding of the country.” He believes there is room for diverse opinions on these kinds of issues.


“And the respect for traditional Christian values is something that the government is not only permitted to do but required to do,” Sheller added.


Sheller says Sunrise tries to balance their religious convictions with a desire to serve anyone who wants to be a foster parent. “Sunrise believes that it is in the children's best interest to have opposite-sex foster parents. Pursuant to its religious beliefs and values, it makes arrangements to refer same-sex couples to other agencies in the state,” said Sheller, “and there are plenty of them who work with same-sex couples.”


In addition, when it comes to hiring practices, “Sunrise will facilitate for those persons to potentially be employed by other agencies who work with the LGBT community,” Sheller said.


Sunrise was founded in 1869 and was known as the Kentucky Baptist Homes for Children for many years. The agency has long been affiliated with the Kentucky Baptist Convention, as is Kentucky Today.


“Sunrise serves all children, regardless of the child's race, sex, ethnicity, disability, sexual orientation, gender identity. Every child deserves a loving home and that's what Sunrise tries to provide,” Sheller said.


The Cabinet has set a June 30 deadline for Sunrise to sign a new contract or face losing its 40-year relationship with the commonwealth.  


“The suggestion that there has been some new federal mandate that requires these terms and precludes an exemption is incorrect. The federal law has not changed in this regard,” Sheller said.


He said the organization doesn’t understand why an exemption is given by the Paul Patton administration, Steve Beshear administration, Ernie Fletcher administration, and Matt Bevin administration cannot be given by the Andrew Beshear administration.


“It is an illegitimate excuse that they're making because they want to choose to exclude Sunrise, not because they have to,” Sheller said.

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