During a Tennessee House floor debate in early April, Democratic state Rep. Bo Mitchell stood up to criticize the bill before him that would allow foster-care agencies to refuse to work with potential foster or adopting parents on a religious basis as a "slippery slope.”
The measure passed the House on April 1 and now awaits consideration in the GOP-controlled state Senate.
“For somebody to hide behind their moral convictions to disapprove someone’s opportunity to raise a child, I mean, we have enough children out there looking for a good home that we shouldn’t give anyone a right to discriminate against anyone,” said the lawmaker, who noted he was an adoptive parent.
Mitchell’s comments reflect the concerns of some lawmakers and advocates around the country as states press for similar measures or even broader religious-freedom bills that would allow discrimination in the child welfare system. The issue has also popped up in Arkansas, Georgia, and Colorado this session.
The Health and Human Services Department has also waded into the debate by granting South Carolina foster-care agencies an exemption from religious-discrimination protections. Officials from other states are now looking at this route as a way to exempt child-welfare services from federal religious nondiscrimination requirements.
Advocates and legal experts told National Journal that there has been an increase in these kinds of state laws and bills since the Supreme Court case upholding LGBT people’s right to marry in 2015.
“I think this is part of a strategy to gut all protections, nondiscrimination protections, marriage-equality protections, for LGBT people by trying to establish a right to a religious-objection carve-out,” said Leslie Cooper, deputy director at the American Civil Liberties Union’s LGBT and HIV Project.
Ten states have already passed measures in the past few years to allow faith-based foster-care organizations to continue receiving funds and licensing, even if they discriminate against certain families.
“We’ve seen a big push in the child-welfare context to authorize government-contracted agencies that are providing government services with taxpayer dollars to use religious criteria to exclude families,” she added.
Measures like the one in Tennessee have been pushed by the Congressional Prayer Caucus Foundation, a religious-freedom group dedicated to “restoring Judeo-Christian principles to their rightful place.” The group, as part of a religious freedom effort called “Project Blitz,” linked up with the National Legal Foundation to put forward model legislation on the issue, according to senior legal advisor to the CPCF and NLF President Steven Fitschen.
“The need for this particular legislation is because a lot of the Christian organizations and organizations of other faiths are losing funding,” said Fitschen.
The sponsor of the companion bill in the Tennessee Senate, GOP Sen. Mark Pody, is listed as the chairman of the Tennessee Legislative Prayer Caucus, a state branch of the CPCF network. He declined to speak with National Journal for this story.
But advocates argue these policies would turn away potential families and keep children in group homes.
“Would this allow someone to tell a Jewish family or any other religion that they can’t have that child because they think their religion is better than theirs?” asked Mitchell on the state House floor, pressing House sponsor Rep. Tim Rudd.
Rudd noted the legislation states that a private licensed child-placing agency will not be required to place a child in a foster care or adoption home if this service violates the group’s beliefs “to the extent allowed by federal law.”
“You’re saying that someone can discriminate against somebody for their religious or moral conviction or policies to the extent allowed by federal law,” said Tennessee Democratic Rep. John Ray Clemmons. “So I’m curious to what extent federal law allows us to discriminate on these bases?”
The Trump administration has signaled that it believes the Religious Freedom Restoration Act allows faith-based foster organizations to be exempted from religious non-discrimination protections put in place during the Obama administration. HHS Center for Faith and Opportunity Initiatives Director Shannon Royce in May 2018 encouraged faith-based foster- and adoption-care agencies to reach out to the department on this issue.
“If you are engaged in fostering and adoption care and there is something that you believe substantially burdens your religious expression, we would encourage you to file a request for religious accommodation under the Religious Freedom Restoration Act with both [the Administration for Children and Families] and [the Office of Civil Rights],” she said at a Heritage Foundation event last year.
HHS earlier this year granted a waiver to South Carolina exempting the state’s agencies from federal-level religious discrimination protections so that they are not at risk of losing funding or of having their license revoked by the state. Gov. Henry McMaster requested the waiver after a foster care agency, Miracle Hill Ministries, refused to work with non-Christian families.
Officials from Texas and Pennsylvania are seeking similar waivers to protect these types of organizations in their states.
On March 27, a group of Pennsylvania state legislators wrote to HHS asking for an exemption. “Unfortunately, regulations are being used by the current administration in Pennsylvania to force Catholic and other faith-based adoption and foster agencies to choose between maintaining and living out their religious beliefs and participating in” the Pennsylvania Statewide Adoption and Permanency Network program, the letter stated.
“We understand that these recent HHS regulations require a foster agency or adoption agency to avoid any discrimination based on religion or sexual orientation or gender identity,” they added. “We would like to echo and add a unified voice to the pleas which several Catholic and other faith-based agencies have recently submitted, requesting relief from Federal regulations which are being unconstitutionally imposed upon these essential faith-based adoption and foster care providers.”