WASHINGTON — The Department of Health and Human Services (HHS) recently made a move that could be significant for religious child-welfare providers who face federal and state regulations that conflict with their deeply held beliefs when it comes to placing children with same-sex couples. HHS granted a religious exemption to a non-discrimination regulation for faith-based foster-care agencies in South Carolina.
The Obama-era regulation, enacted just nine days before President Trump’s inauguration, prohibited recipients of federal funding from discriminating “based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity or sexual orientation.”
It also required child-welfare agencies receiving federal funds to “treat as valid the marriages of same-sex couples,” in accordance with the 2015 Obergefell v. Hodges Supreme Court decision.
In his request for an exemption, South Carolina Gov. Henry McMaster cited the case of Miracle Hill Ministries, a Christian group that only places children with Christian families.
Miracle Hill Foster Care’s license was threatened in early 2018 by the South Carolina Department of Social Services due to the Obama-era regulation. The group operated under a provisional license until HHS granted McMaster’s request for a waiver.
The Administration for Children and Families (ACF) at HHS granted the request, determining that requiring Miracle Hill to comply with the regulation “would cause a burden to religious beliefs that is unacceptable under RFRA (the Religious Freedom Restoration Act).”
The Religious Freedom Restoration Act limits the government’s ability to “substantially burden a person’s exercise of religion” to cases where the government can demonstrate that the burden is “the least restrictive means of furthering” a “compelling government interest.”
In light of this RFRA stipulation, ACF noted that enforcing the regulation would have caused a “programmatic burden for the SC Foster Care Program by impeding the placement of children into foster care.”
As McMaster pointed out in his request, Miracle Hill recruits 15% of the state’s foster-care families.
“Faith-based organizations that provide foster-care services not only perform a great service for their communities, they are exercising a legally protected right to practice their faith through good works,” Lynn Johnson, assistant secretary for ACF, said in a statement provided to the Register. “Our federal agency should not — and, under the laws adopted by Congress, cannot — drive faith-motivated foster-care providers out of the business of serving children without a compelling government interest, especially now that child-welfare systems are stretched thin as a result of the opioid epidemic.”
“This decision preserves all of the foster-care agencies currently available for children in South Carolina by ensuring faith-based organizations can continue to serve this vulnerable population,” the HHS official added. “It protects minors who are in need of as many options as possible for being placed in loving foster families.”
Reid Lehman, president of Miracle Hill Ministries, celebrated the decision in a statement.
“We are deeply gratified by this decision, which allows Miracle Hill Foster Care to keep its license and continue serving nearly 200 foster children and more than 230 foster families,” he said. “It’s always been about the license, our right to exist.”
An ‘Encouraging Sign’
Lori Windham, senior counsel at the Becket law group, told the Register that while HHS’ exemption is limited to South Carolina, the move is an “encouraging sign” for faith-based adoption and foster-care groups that have struggled with requirements to place children with same-sex couples, which go against their faith’s teachings about marriage and family.
“Although this waiver was specific to South Carolina, the reasoning of it ought to apply nationwide because HHS believes it would violate the Religious Freedom Restoration Act, federal law, to enforce these regulations against South Carolina’s religious adoption agencies,” she said. “If it violates federal law to enforce these regulations against South Carolina adoption agencies then it would also violate federal law to enforce it in Texas or Oklahoma or anywhere else.”
Overall, Windham said ACF’s decision was good for adoption agencies and good for kids.
“I think this shows that federal law protects the ability of religious adoption agencies to be religious,” she emphasized. “Speaking more broadly, we are better off when we have a diverse array of adoption agencies that can serve a diverse array of parents and kids.”
Texas Attorney General Ken Paxton would like the Trump administration to go a step farther and called on HHS in December to repeal the Obama-era regulation altogether.
“The rule exceeds statutory authority, conflicts with Texas law, and infringes the religious freedom of foster-care and adoption service providers,” he wrote in a letter to HHS.
Barring its repeal, Paxton also requested an exemption from the rule. He pointed to ongoing issues the state’s faith-based providers were facing and cited a lawsuit against HHS and the USCCB.
“The rule substantially burdens religious beliefs of providers whose faith disagrees with same-sex marriage and precludes them from placing children in such arrangements,” he stated in the letter. “And this conflict is not hypothetical. A couple in Fort Worth, Texas, is suing HHS and the United States Conference of Catholic Bishops (USCCB) because USCCB provides foster care and adoption services in Texas, but places children according to core Catholic beliefs — a decision Texas protects.”
Paxton noted that Texas has already enacted a state law “which protects the religious liberty of these organizations and prohibits the state from granting or refusing to grant funding to such organizations because of their religious beliefs.”
However, he wrote that the regulation “asks Texas to ignore the protections afforded to these religious organizations under federal and state law.”
The Texas Attorney General’s Office had no comment at this time for the Register about how the HHS waiver granted to South Carolina might affect their request.
Efforts in Other States
Alabama, South Dakota, Virginia, Michigan, Oklahoma and Colorado have all passed laws to protect religious providers from being forced to place children with same-sex couples.
These efforts to allow faith-based child-welfare providers to practice their faith have met with significant legal battles.
In Michigan, the American Civil Liberties Union is challenging the state’s protections for religious adoption services. They also sued St. Vincent Catholic Charities for refusing a same-sex couple’s adoption request.
Many religious adoption providers have been forced to close in states that do not provide religious exemptions.
More recently, Catholic Charities of Buffalo, New York, ended its adoption services in August because it could not continue the practice of only placing children in homes with a mother and a father.
Lawmakers are looking at more permanent solutions in Congress to protect faith-based adoption providers nationwide.
The Child Welfare Provider Inclusion Act, which has been repeatedly introduced in the House of Representatives by Rep. Mike Kelly, R-Pa., and in the Senate by Sen. Mike Enzi, R-Wyo., would protect faith-based providers from being forced to close because of their beliefs.
“Our first and most cherished freedom, religious liberty, is to be enjoyed by all Americans, including child-welfare providers who serve the needs of children,” Bishop Frank Dewane of Venice, Florida, chairman of the USCCB’s Committee on Domestic Justice and Human Development; Archbishop Joseph Kurtz of Louisville, Kentucky, chairman of the Committee for Religious Liberty; and Bishop James Conley of Lincoln, Nebraska, chairman of the Subcommittee for the Promotion and Defense of Marriage; wrote in letters of support sent to Rep. Kelly and Sen. Enzi.
Added the bishops, “Women and men who want to place their children for adoption ought to be able to choose from a diversity of adoption agencies, including those that share the parents’ religious beliefs and moral convictions.”
Register correspondent Lauretta Brown writes from Washington, D.C.