Advocates Demand Congress Move On HHS Religious-Exemption Waiver

The administration’s decision to allow South Carolina foster-care groups to discriminate based on religion has drawn Democrats’ ire, but advocates say lawmakers need to act now.

Sen. Ron Wyden
AP Photo/Susan Walsh
Jan. 31, 2019, 8 p.m.

Democrats are concerned by the Trump administration’s move to allow federally funded child-welfare organizations to turn away prospective parents based on religious beliefs, but the issue has yet to spark immediate congressional action.

Advocates say there is no time to waste. They’re worried this decision will lead to broader discrimination and are calling for immediate hearings and passage of legislation that would override the White House’s decision.

The Health and Human Services Department last week provided South Carolina a waiver so that religiously based foster-care organizations do not have to comply with an Obama-era policy that protects against religious discrimination.

“People who are qualified and willing to provide safe and comforting homes for foster children in the state are going to be turned away just because they’re Jewish, or not Protestants, or practice no faith at all,” said Sen. Ron Wyden in a video released on NowThis News on Tuesday. “Those potentially wonderful parents will also be turned away because they are LGBTQ parents. The Trump administration acted on this issue under the radar and at the personal request of Republican Governor Henry McMaster.”

Wyden’s office said next steps are still being explored. And a key House Democrat who had urged HHS not to go through with the request said action on the issue is not at the top of his crowded priority list.

“That has not come up at the moment. … We have a pretty full agenda right now, so we’ll get to these things in time,” Ways and Means Chairman Richard Neal said.

But advocates are concerned that HHS’s decision will lead to more states and organizations seeking religious exemptions, keeping prospective parents who belong to minority religious groups or are LGBTQ from participating in the foster-care system.

“To deny children good families based on an agency’s religious objection is shameful,” said Leslie Cooper, deputy director of the American Civil Liberties Union LGBT & HIV Project. “And for the state to allow that and the federal government to now say it’s fine for federally funded programs to deny children good families, solely based on an agency’s religious objections, is shameful.”

Cooper noted that Texas Attorney General Ken Paxton had submitted a similar request to HHS even before the department had come to its decision, and others could follow.

“Absolutely this could be the beginning of countless other states doing the same,” she said. “In addition, we know a number of states have already passed laws in their statehouses to authorize the use of religious eligibility criteria to exclude families for children. This action poses the risk of emboldening others to think that that’s OK.”

Cooper said the ACLU is considering legal action against HHS and has pushed for Congress to move on the issue. “We’ve absolutely called on Congress to have hearings on this,” she said.

The letter from HHS to McMaster revealed that the governor’s request was eventually narrowed to just the religious-nondiscrimination portion of the rule, instead of exempting foster-care organizations from other protections for sexual orientation or gender identity.

But for organizations like Miracle Hill Ministries in South Carolina, this distinction may not matter, said Currey Cook, director of the Youth in Out-of-Home Care Project and counsel at Lambda Legal.

Miracle Hill became the center of this controversy after the group said the South Carolina Department of Social Services began to pressure it in early 2018 to stop recruiting only certain Christian families to serve as foster parents. McMaster then stepped in to request a religious exemption waiver allowing groups like Miracle Hill to continue receiving federal funds and to keep their licenses even if they do not comply with HHS antidiscrimination regulations.

Cook pointed to a past list of requirements on Miracle Hill’s website from 2014 that states a prospective foster parent must “have a lifestyle that is free of sexual sin (to include pornographic materials, homosexuality, and extramarital relationships).” This same page also says that a foster parent must be “a born-again believer in the Lord Jesus Christ,” an active participant in a Protestant church, and have a “genuine concern” for the spiritual welfare of the children.

A November letter to HHS penned by Cook and signed by several groups, including the ACLU, described the criteria as “extraordinarily particular" and said they "exclude a wide variety of South Carolinians from the ability to provide a short-term or permanent home to the 4,518 children currently in the State’s foster care system.”

According to Miracle Hill’s communications and marketing director, Sandy Furnell, that criteria is "definitely not something we are using currently." Under the current process, prospective foster families must complete an inquiry form on the group’s website, which includes questions about their denominational affiliation, pastor’s name and contact information, and “their personal testimony of faith/salvation in Jesus Christ," Furnell wrote in an email.

Families that make it through the initial screening then attend an orientation. “At the orientation, the director will orally go through Miracle Hill’s doctrinal statement in detail, which includes information on ethics and sexual morality,” she said. If the prospective parents agree with the statement, Furnell said, a licensing specialist would be assigned to meet with them.

Cook argues that “if you’re having [foster parents] required to say, ‘Yes, I believe your whole set of beliefs …’ you’re excluding people on the basis of your religious beliefs because they aren’t agreeing with you.”

He added that other groups may view HHS’s waiver, which specifically mentions Miracle Hill, as a way to exclude same-sex couples from their programs.

In its letter granting the waiver, HHS said that Miracle Hill and similar organizations in South Carolina are entitled to an exemption under the 1993 Religious Freedom Restoration Act, which states that the government may not significantly burden a “person’s exercise of religion.” But Cooper argues that the act does not allow foster-care programs to limit who they work with based on religious beliefs.

“It’s not a burden on anyone’s religion to not be allowed to provide a government service in a way that excludes people just on faith,” she said. “Nobody is required to accept millions of dollars in taxpayer money to perform a government service, and if you do accept tax dollars to perform a government service, the right to religious freedom doesn’t give you the right to limit that service to people of your own faith.”

Senate and House Democratic lawmakers last Congress sought to amend the law to clarify that religious exemptions cannot be used for laws that guarantee civil rights, including the Civil Rights Act of 1964.

Rep. Joe Kennedy III said he plans to reintroduce this legislation, the Do No Harm Act, and he told National Journal that the bill would directly challenge HHS’s decision.

“You should not be able to use taxpayer dollars to discriminate against other people because of who they are and because of what they believe,” he said. “That is essentially what HHS is allowing. This is a waiver that never should have been granted, and I hope that they reconsider it, and absent that … we’re planning and will continue to move forward on the reintroduction of the Do No Harm Act that would make this even more clear.”

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