Trump Greenlights Discrimination in Foster Care as Additional States Try to Pass Harmful Laws

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March 12, 2019

The most recent battle over “religious freedom” comes at the expense of some of the most vulnerable members of our society: children in foster care.

In recent years, we have seen many clashes at the state and federal level between some faith-based providers of foster care (we represent clients turned away by such providers) and basic principles of equality and dignity under the law. This year, in a one-two punch, the Trump administration explicitly allowed taxpayer-funded discrimination in the name of religion and made a shocking public endorsement of discrimination against LGBTQ parents, putting the interests of providers before the interests of children in our nation’s child welfare system. 

Today, the Tennessee Legislature is holding a committee hearing on a bill that allows government-funded child welfare contract agencies to discriminate against foster and adoptive parents. And this Thursday, Health and Human Services (HHS) Secretary Alex Azar (pictured) will be on the hot seat a Senate Finance Committee hearing answering questions about why HHS is now waiving federal law to permit South Caroina agencies to do the same.

Here's what you need to know.

What bad thing has Trump done now?

In late January, Trump’s HHS made headlines when it granted a request from South Carolina to exempt faith-based child welfare contract providers from federal nondiscrimination law. Basically, faith-based South Carolina child placing agencies—which receive federal and state taxpayer funding—were told that they can discriminate on the basis of religion.

And last month, Trump doubled down on his administration’s commitment to permitting such discrimination. First, at the National Prayer Breakfast, he said that his administration was working to ensure that providers could turn away same-sex couples. And then, the Washington Post reported that HHS plans to put a broad waiver permitting discrimination in the 2020 federal budget (hence Azar’s appearance at the Senate Finance hearing), avoiding the need for individual waivers. Meanwhile, Texas has already requested a waiver for their providers and asked HHS to repeal the entire nondiscrimination rule at issue.

What started all this?

South Carolina requested an exemption from nondiscrimination rules on behalf of Miracle Hill Ministries, a Protestant Christian faith-based agency in Greenville which turned away a former foster parent seeking to mentor foster children simply because she was Jewish. In addition to multiple Jewish individuals, Miracle Hill has also turned away Catholic families and their CEO, Reid Lehman, has been quoted as saying the agency won’t serve same-sex couples. In fact, Miracle Hill has refused to work with any foster parents who do not agree with the agency’s statement of faith or with anyone who is not free of “sexual sin,” defined to include homosexuality and premarital sex.

(Conveniently, Miracle Hill took their list of foster parent criteria off their website last month, although it still available through web archives.)

Wait, why is a private religious agency involved in foster care to begin with?

Providing foster care services is a government function, but all state child welfare systems contract with nonprofit organizations to provide services. These private organizations, like Miracle Hill, use federal and state dollars to perform a variety of functions from running group homes to licensing and supporting foster and adoptive parents. So when agencies like Miracle hill discriminate, they do so with taxpayer money.

What does this mean for LGBTQ people and people of minority faiths?

Even though South Carolina requested it, HHS did not grant a waiver allowing agencies to discriminate on the basis of sexual orientation or gender identity. The HHS Grants Rule remains the law of the land. However, Miracle Hill is an example of how agencies may tie their religious objection to anyone who falls outside their extremely limited criteria. And we have clearly seen that people of minority faiths have been turned away, even from being a mentor.

And what about the kids? Aren’t these agencies supposed to be helping them?

Yes! The paramount obligation of the child welfare system is to provide for the best interests of the children in care. All state child welfare agencies are legally obligated to ensure the safety and wellbeing of kids and to ensure that youth exit foster care to a permanent home. But children clearly miss out when agencies are permitted to turn away qualified, loving parents based solely on their religion, sexual orientation, or gender identity and not their ability to parent.

Leading voices on child welfare policy have been united in their opposition to the HHS waiver. Both the Child Welfare League of America and FosterClub have issued statements condemning the HHS waiver and pointing out how it authorizes providers to “violate the central principle of the nation’s child welfare system by not placing the best interest of the children and youth first.” Late last year, both Lambda Legal and Children’s Rights sent letters to HHS opposing South Carolina’s waiver request, collecting a total of 90 signatures from child welfare, civil rights, and religious organizations. And last month, over 100 organizations joined a letter from the Coalition Against Religious Discrimination (CARD) denouncing HHS’s decision to allow South Carolina agencies to discriminate.

This move also harms LGBTQ youth, who are disproportionately represented in foster care compared to non-LGBTQ kids, meaning that these agencies are serving LGBTQ youth while turning away same-sex couples. Despite making up only five to seven percent of the general population, almost 20% of youth in foster care identify as LGBTQ; in other words, there are up to two times as many LGBTQ young people living in foster care than outside of it. Imagine how damaging it is for a young queer person in care to find out that their agency refuses to work with people like them or is refusing to license a potential home for them just because of the faith of those parents.

I thought this was illegal?

You thought right.

Religious freedom is a fundamental right in the US, but—to be clear—the Trump administration has misinterpreted what it means to “freely exercise your religion.” Religious freedom means you are free to hold your own beliefs, not that you can impose them on others . . . especially when you are receiving government funding. In fact, if the government does allow funds to be used to favor a particular religious group, it violates the Establishment Clause of the Constitution (you may have heard of it). These moves also raise Equal Protection and Due Process concerns. Federal courts in Michigan and Pennsylvania that that have been squarely confronted with these issues agree. Our colleagues at Americans United have filed a lawsuit against HHS and South Carolina challenging the waiver.

Aren’t some states doing the same thing?

Yes. Some contract agencies previously used the inability of same-sex couples to marry as the justification for turning them away. Since marriage equality became the law of the land, eight additional states passed laws allowing providers to use a religious litmus test for whom they serve, bringing the grand total to ten. Some state laws, like Texas’s HB 3859, even allow taxpayer-funded providers to provide “religious education” to children. Tennessee  is considering HB 836 this Tuesday, which would permit its contract agencies to discriminate based on religion.

So, what now?

Lambda Legal and our partners are committed to opposing any license to discriminate and ensuring that the child welfare system focuses on the wellbeing of vulnerable youth rather than the special interests of adults. We are litigating similar issues, supporting Congressional oversight, fighting discriminatory bills with our partners in Every Child Deserve a Family Campaign, and urging Congress to pass the Every Child Deserves a Family Act, the Equality Act, and the Do No Harm Act.

If you have been or worry you will be rejected as a foster parent by a foster care agency because of your religion, sexual orientation, or gender identity – or if you know of young people in care facing discrimination – we encourage you to contact Lambda Legal’s Help Desk.