The Cuban government recently published the draft of a new family code that would open the door for same-sex marriage and adoption, as well as recognizing surrogacy. The preliminary draft of the family code must be approved by Cuba’s parliament followed by a grassroots plebiscite before going into effect.

The terms of the new family code would define marriage as “a voluntary union between two persons” instead of as between a man and a woman. The proposed change comes three years after authorities removed similar language from a proposed draft of the new Cuban constitution in response to heavy blowback from religious groups, including the Catholic Church. The new code would also permit a child to legally have two fathers or two mothers. A child might even have more than two legal parents in the event of surrogacy or a step-parent adopting a child.

The proposed code would also recognize surrogacy for same-sex couples as well as for couples who struggle with fertility, but it would prohibit anyone from charging for surrogacy.

Given that the code must be approved by a full voter referendum after approval by the legislature, the fate of the bill remains extremely uncertain.

The State of Same-Sex Adoption in the United States: Better, Not Best

Cuba’s progressive proposed family code brings into sharp focus the inconsistent approach to same-sex adoption rights in the United States. Many expected the recent landmark Supreme Court cases concerning same-sex marriage and LGBTQ rights in the workplace to be the final word on the matter: It is unlawful to discriminate based on sexual orientation and sexual identity. Laws prohibiting same-sex adoption have been ruled unconstitutional. Unfortunately, the facts on the ground for same-sex couples have not proven to be so clear-cut. The uncertainty stems from the ongoing conflict between anti-discrimination policies and religious freedom in the United States.

Many adoption agencies in the U.S. are run by religious organizations, including the Catholic Church. Many of those agencies have strict policies against placing children with same-sex couples, or even with single parents, based on their religious beliefs. Same-sex parents looking to adopt are forced to find a workaround; although it may seem easy to simply work with a different agency, in many states, the options are limited. Moreover, states often contract with a limited number of adoption agencies, and many conservative state legislatures have passed laws in recent years to protect the right to discriminate based on religious beliefs.

Same-sex couples rejected by adoption agencies based on alleged religious freedom have filed lawsuits in a number of states claiming that they are facing unlawful discrimination; they have met with mixed success. Some states have responded by simply choosing not to work with adoption agencies that discriminate based on sexual orientation or gender identity. Those agencies, in turn, have sued, claiming their First Amendment rights have been violated.

The Supreme Court recently addressed a case involving a religious adoption agency rejected by the city of Philadelphia. Philadelphia refused to contract with Catholic Social Services once it learned that Catholic Social Services would not work with same-sex parents for foster services or adoption. The Roman Catholic adoption agency sued, claiming that the city violated its First Amendment rights. Writing for a unanimous Court, Chief Justice Roberts found that the city’s actions unconstitutionally burdened the adoption agency’s religious freedoms.

According to the Court: “The City’s actions have burdened CSS’s religious exercise by putting it to the choice of curtailing its mission or approving relationships inconsistent with its beliefs.” Moreover, the city’s nondiscrimination policies were not facially neutral because city officials had the discretion to grant exemptions whenever they saw fit. According to Roberts: “The inclusion of a formal system of entirely discretionary exceptions” in its standard foster care contracts “renders the contractual nondiscrimination requirement not generally applicable.”

The conservative members of the Court wanted the majority to go even further and abandon (or at least severely limit) the doctrine that protects neutral and generally applicable laws that happen to burden religion. As written, the decision could permit Philadelphia to rewrite its policies to eliminate the discretion to grant exemptions and, based on a truly generally applicable nondiscrimination policy, refuse to work with Catholic Social Services in the future unless they permit same-sex adoption.