HHS Could Let Foster Care Orgs Discriminate Based on Religion

The Trump administration may reverse course on Obama-era discrimination protections in the foster-care system.

Health and Human Services Department Secretary Alex Azar speaks at the National Governors Association 2018 winter meeting in Washington on Feb. 24
AP Photo/Jose Luis Magana
Jan. 21, 2019, 8 p.m.

The Trump administration may be poised to provide protection for foster-care organizations that, because of their religious beliefs, refuse to work with certain prospective parents such as same-sex couples.

Conservatives have pressured the Health and Human Services Department to reverse course on an Obama-era regulation that expanded anti-discrimination protections in such services to include religious beliefs, sexual orientation, and gender identity.

Democratic lawmakers and legal experts are concerned that undermining the regulation would open up groups of people, such as LGBTQ individuals or those of a religious minority, to discrimination while trying to become foster or adoptive parents.

HHS has received requests from South Carolina Gov. Henry McMaster and Texas Attorney General Ken Paxton to provide waivers and exceptions to this regulation so that certain faith-based foster and adoption agencies would not be at risk of losing federal funds and closing.

“Some faith-based partners require potential foster or adoptive homes to maintain a certain belief system and regularly attend religious services,” wrote Paxton to HHS on Dec. 17 asking for a statewide exception to the Obama regulation. “Some have particular religious views on marriage, gender identity, and sexual orientation. But none of them should be required to forfeit their beliefs as a condition of helping Texas’s most vulnerable children.”

HHS's Administration for Children and Families told National Journal that it is considering the South Carolina governor’s request for a waiver. “The request from the governor of South Carolina on religious freedom and foster-care agencies has been received by HHS and is currently under consideration,” an administration spokesman said. “After a decision has been made on the pending request, a response will be delivered to the governor.”

At the heart of the issue is an Obama regulation that requires recipients of certain HHS funds to not discriminate against people based on age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation.

Since the regulation came late in Obama’s presidency, it hasn’t been enforced consistently, said Frank Bewkes, a policy analyst at the liberal Center for American Progress. “It really was never implemented … and it hasn’t been enforced really under the Trump administration, which is probably not surprising to anyone no matter what side of the aisle you’re on,” he said. “So, really, it comes down to the states [that] kind of have been trying to deal with this.”

Some faith-based services have either had to close or discontinue foster-care services because they do not comply with state regulations that provide protection to same-sex couples. The Catholic Charities of Buffalo, for example, announced in August it would phase out services because it “cannot uphold the requirement that contracting agencies allow same-sex couples to foster and adopt children.”

McMaster and Paxton argued that the Obama regulation is overreaching and inconsistent with protections in the Social Security Act, which prohibits discrimination on the basis of race, color and national origin. Paxton wrote it “does not authorize HHS to prohibit discrimination on characteristics other than race, color, or national origin, or to mandate particular treatment of same-sex marriages.”

Federal action on this issue is concentrated at HHS after conservative congressional lawmakers failed to pass legislation that would have allowed such organizations to continue discriminatory practices based on religious differences. The legislation, spearheaded by Rep. Robert Aderholt, would have also dinged state budgets for child-welfare services if they moved against faith-based organizations.

Aderholt said that he is open to HHS action on the issue and will continue pressing his legislation in the new Congress. “I would be happy to see the administration take the lead on this,” he said. “... I’ve been very supportive of still trying to do that and we’ll probably try to make an effort maybe in this coming appropriations process to do the same thing.”

Emilie Kao, director of the conservative Heritage Foundation’s Richard and Helen DeVos Center for Religion & Civil Society, said action from HHS is necessary to protect these organizations from state action to suspend or cancel contracts. She noted that this has already occurred in places like Philadelphia, California, and Massachusetts.

“Unfortunately, we do think they are necessary because there have been multiple states that have already terminated contracts or suspended licensing of faith-based foster-care and adoption agencies and there are others that are threatening to do the same,” she said.

McMaster had written to HHS last year after the South Carolina Department of Social Services started placing pressure on Miracle Hill Ministries foster care to stop recruiting only Christian families, according to the group.

Reid Lehman, Miracle Hill’s CEO, said the service could still function if federal funds were cut off, but their main concern is with licensing. Lehman said he had a chance to meet with HHS officials in a “productive meeting” in November.

“They expressed their interest in working with us toward resolution, they expressed their beliefs that one might come soon, but we have not yet actually seen that letter from them. ... We certainly have not heard that our situation is viewed unfavorably,” he said.

Democrats, meanwhile, have recently raised concerns over the possibility of HHS issuing waivers to allow discriminatory practices in foster-care services. “There is simply no reason to deny otherwise qualified prospective parents the opportunity to care for children because they are Humanist, Jewish, Mormon, Catholic, or LGBTQ,” wrote House Education and Labor Committee Chairman Bobby Scott and House Ways and Means Committee Chairman Richard Neal on Jan. 11.

Scott had also sent a letter on the issue in November, but a Democratic committee aide said HHS has not responded.

Other policy and legal experts are worried that providing such exemptions would open the door to increased discrimination against prospective parents.

“It would set a really bad precedent and would probably open some slippery slope, floodgates of more and more exemptions,” said Bewkes. “After the first one, I’d imagine they’d find it easier to do more, and that’s very concerning because especially if you know we’re talking about religious discrimination.”

Currey Cook, director of the Youth in Out-of-Home Care Project at Lambda Legal, described the waiver requests as an “Aderholt redo” that would have broad implications.

“If you’re an agency or providing services for a transgender youth in your care, and you don’t think that trans people exist, and so are refusing to get that person connected with supportive therapy, affirming therapy, or access to information about gender-affirming care the young person might want, then these waivers, you could say, ‘Well, I want a waiver because I don’t agree with that,’” he said.

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