Henry McMaster

Spokesman says Texas has also asked for an exemption

Lisa Keen | Keen News Service
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The Trump administration has given foster care agencies in South Carolina a green light to discriminate based on religion, an action that LGBT legal activists say will likely harm LGBT youth and prospective parents who are in same-sex relationships.

The action came in the long-running conflict between faith-based groups and laws prohibiting discrimination, and the U.S.

Department of Health and Human Services on Jan. 23 weighed in on the side of the faith-based groups.

HHS did not answer a direct question about how many requests for exemptions it has received, but a spokesman for Wagner’s agency, the HHS Administration for Children and Families, said the office is considering a request for exemption from Texas.

In a letter to the governor of South Carolina, dated Jan. 23, an HHS official granted a waiver that significantly undermines the federal department’s existing policy against federal funds going to organizations that discriminate based on religion, sexual orientation, gender identity and other characteristics.

The waiver is the latest volley in a longstanding dispute between faith-based organizations who want government funds but don’t want to abide by government rules concerning non-discrimination. It’s also an effort by the Trump administration to undermine a pro-LGBT policy instituted under the Obama administration.

In the letter to Gov. Henry McMaster, HHS Principal Deputy Assistant Secretary Steven Wagner granted South Carolina the right to funnel federal grant money to foster care agencies in the state even if the groups violate the HHS regulation that prohibits discrimination based on religion. The request for an exemption was prompted by a Christian-run foster care group called Miracle Hill, which does discriminate based on religion and sexual orientation.

The regulation at the center of the controversy states: “It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in … or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity or sexual orientation.

Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.”

In granting the exemption to South Carolina, Wagner noted that the federal Foster Care Program Statute prohibits discrimination on the basis of only race, color or national origin. Wagner’s letter also notes that the state’s chief legal counsel agreed that “the request for an exception was narrowed to the religious nondiscrimination provision.”

Wagner added, “Please note that this exception does not relieve the S.C. Foster Care Program of its obligation to comply with any other requirements” of the HHS policy. Jenny Pizer of Lambda Legal noted that while Wagner’s note is “an important narrowing as a legal matter,” it is unlikely to “reduce the discrimination [against LGBT people] as a practical matter.

“Based on what’s happened in the past, we think it’s highly likely that Miracle Hill will continue to turn away LGBT prospective parents regardless of the parents’ religion — that is, even if they identify as born-again Christians. And then Miracle Hill will argue that they are entitled to refuse any prospective parents who don’t comply with [their] condemnation of same-sex relationships and views about gender identity.”

The conflict between faith-based organizations providing foster care and laws and policies prohibiting discrimination based on sexual orientation has been going on for more than a decade. Catholic Charities in Massachusetts, California, Illinois, Washington, D.C. and several cities have chosen to shut down their foster care services rather than obey state and local non-discrimination laws.

In Michigan, openly-gay state Attorney General Dana Nessel announced last week that she would attempt to broker a settlement between a lesbian couple who seeks to adopt children and foster care agencies who refuse to consider their application. Michigan and nine other states have laws permitting foster care agencies to discriminate against same-sex couples.

A 2006 report by the Evan B. Donaldson Adoption Institute found that one-third of child welfare agencies in the U.S. rejected applications from prospective parents because they were lesbian, gay or bisexual. Lorri L. Jean, executive director of the Los Angeles LGBT Center, said a study commissioned by her group also found that nearly 20 percent of youth in need of foster care are LGBT youth.

In 2011 under the Obama administration, HHS issued a memo encouraging child welfare agencies to better serve LGBT youth and better utilize LGBT prospective parents. But just days after President Trump’s inauguration, a purported draft for an executive order was leaked that sought to prohibit the federal government from taking “any adverse action against a religious organization that provides federally-funded child-welfare services, including promoting and providing adoption, foster, or family support services for children … on the basis that the organization declines to provide … such services due to a conflict with the organization’s religious beliefs.”

Wagner indicated in his letter than he was responding to a letter Gov. McMaster sent in February last year asking for an exception.

McMaster’s letter informed HHS that South Carolina would have “difficulty” finding homes for children in foster care unless it could rely on “certain faith-based organizations,” and that the existing HHS policy forced such faith-based organizations to “abandon their religious beliefs” in order to receive federal funding.

McMaster apparently argued that the HHS non-discrimination policy violated the federal Religious Freedom Restoration Act, a federal statute prohibiting government from imposing a “substantial burden” on the free exercise of religion without identifying a “compelling” need to do so. It also states that the federal government must not take any adverse action against an individual or religious organization because that organization has “spoken about moral or political issues from a religious perspective.”

Julie Kruse of the national Family Equality Council pointed to a May 2018 Heritage Foundation panel in which HHS official Shannon Royce openly solicited faith-based organizations to seek waivers from non-discrimination policies.

“Those of you who are faith-based foster and adoption agencies, … and there is something that you believe substantially burdens your religious expression, we would encourage you to file a request for religious accommodation” under RFRA, Shannon Royce, a former Family Research Council official and now director of HHS’s Center for Faith and Opportunity Initiatives, said then.

“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, said Lynn Johnson, assistant secretary for the Administration for Children and Families. “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.”

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