In a 2020 draft budget request that has not been made public, the Department of Health and Human Services is seeking broad authority to include faith-based foster-care and adoption groups, which reject LGBTQ parents, non-Christians and others, in the nation’s $7 billion federally funded child-welfare programs. That request follows a waiver granted last month to South Carolina’s Miracle Hill Ministries — which requires foster-care parents to affirm their faith in Jesus Christ and refused to work with a Jewish woman seeking to be a mentor — to continue to receive federal funds.
HHS’s Office of Civil Rights argues in the draft proposal that some of the country’s oldest religious agencies in places such as Boston, Philadelphia and Washington have gone out of business because of nondiscrimination requirements that are themselves discriminatory.
HHS specifically takes issue with the idea that an Obama-era rule barring discrimination on the basis of religion, sexual orientation or gender identity might force religious-based groups to have to place children in family arrangements inconsistent with their belief that marriage is the union of one man and one woman.
The question of whether adoption and foster-care agencies run by faith groups — but funded by the federal government — should be allowed to pick children’s homes based on the religion or sexual orientation of the parents is part of a larger debate about the role of religion in a democratic society. The Trump administration has prioritized the interests of religious conservatives, a key part of the president’s political base. In January 2017, it strengthened protections for medical workers who want to opt out of performing procedures such as abortion, assisted suicide or sterilization because of their religious beliefs. And in October, it issued a rule allowing religious businesses to opt out of covering contraceptives in health insurance (two courts have issued a stay preventing the rule from going into effect).
Julie Kruse, director of federal policy for the Family Equality Council, a nonprofit that advocates for the rights of lesbian, gay, bisexual, transgender and queer families, said the draft budget request has little likelihood of passing the Democrat-controlled House. A similar amendment by Rep. Robert B. Aderholt (R-Ala.) was defeated last year. But, she said, it sends a clear message that the administration believes religious freedom trumps equality under the law and that agencies involved in foster care and adoption — and beyond — will see HHS’s position as “a license to discriminate more broadly.”
“It’s a very dangerous precedent,” Kruse said.
HHS declined to comment on the budget memo or whether it will seek to rewrite the underlying nondiscrimination rule, but said it is gathering input about how regulations can be “streamlined to create a level playing field for faith-based service-providers across the country.”
The United States’ three core federal statutes on equality — the Civil Rights Act of 1964, the Fair Housing Act and the Equal Credit Opportunity Act — all protect individuals against discrimination on the basis of religion. But LGBTQ rights are not addressed, creating a tension between conservatives claiming religious liberty and a patchwork of rules and regulations such as the 2016 one barring discrimination in HHS funding. House Speaker Nancy Pelosi (D-Calif.) has made passing the Equality Act — which would amend those statutes to provide explicit nondiscrimination protections for sexual identity and gender identity — a top priority. Advocates say the bill could be introduced as soon as this month.
David Orentlicher, a University of Las Vegas law professor, who has written about health care, the law and religion, called HHS’s draft foster-care request “extreme” and said it does not conform to legal precedent.
“If you adopt the idea that religious beliefs alone could give you an exemption from any law, it would have pretty profound implications,” he said, explaining it could also provide cover for discrimination in housing, employment and education. “That’s why the Supreme Court has never gone that way.”
While the Supreme Court ruled in June in favor of a baker who refused to make a wedding cake for a same-sex couple, the decision was narrow, and sidestepped broader constitutional questions on religious liberty.
Faith-based agencies play an important role in foster care and adoption in the United States, and in some parts of the country are the dominant providers. Religious leaders say that HHS’s requested changes would not prevent qualified individuals from becoming adoptive and foster parents because there are many other agencies that will accept them.
“This is a fight that doesn’t need to happen,” said Mark Rienzi, president of the Becket Fund, a law firm that advocates for faith-based agencies. “The status quo is, there’s a diversity of agencies. And it doesn’t make anything more available to close down religious agencies because they have the wrong beliefs. It just takes away an option.”
Federal funding is the backbone of the foster-care program and is given to states, which use it for the subsidies that go to foster-care families, training for prospective parents and maintenance of computer systems that track the children. As children in foster care are wards of the states, agencies cannot operate independently of government programs. Adoption agencies, on the other hand, can be run privately. But for many years, there has been a shortage of available parents.
At a May event about foster care at the Heritage Foundation, HHS’s Shannon Royce, director of the Center for Faith and Opportunity Initiatives, formed under George W. Bush’s administration as a liaison to the religious community, floated the idea of the waivers for faith-based foster-care groups and suggested it would help ease a shortage of homes. Critics say it would have the opposite effect by shutting out qualified parents who are gay, divorced or otherwise don’t pass the “religious litmus test.”
“If you are engaged in fostering and adoption care, and there is something you believe substantially burdens your religious expression, we would encourage you to file,” Royce told attendees.
In addition to South Carolina, Texas has also filed for a waiver. HHS has not responded to the Dec. 17 request from Texas Attorney General Ken Paxton who highlighted the work of Congregations Helping in Love and Dedication, which provides training for foster-care parents, and One Church, One Child, an adoption recruitment program. Paxton mentioned that some faith-based partners may have “particular religious views on marriage, gender identity and sexual orientation” but that none should be required to “forfeit their beliefs” as a condition of receiving funding.
The proposed budget language would apply to all faith-based providers, making such case-by-case waivers unnecessary.
Currey Cook, an attorney with Lambda Legal, a civil rights group that advocates for LGBTQ communities, said the vast majority of religious providers in foster care and adoption work with people of other faiths and LGBTQ individuals. He called the administration’s contention that many religious providers are being shut out of the child welfare system “a false narrative.”
“No one in this is saying faith-based providers don’t have a place in the child welfare system. It’s great they are a part of it,” Cook said. “What we are saying is that if you are accepting government funds and performing a government service, you should not be able to discriminate against people with those dollars.”
Staff writers Julie Zauzmer and Sarah Pulliam Bailey contributed to this report.