The Trump administration is proposing a new rule that would allow adoption, foster care agencies, and other social service providers receiving taxpayer funding from the Department of Health and Human Services to refuse to serve people based on religion, sexual orientation and gender identity.
The rule essentially guts a 2016 provision enacted in the final days of the Obama administration that prohibited such agencies from receiving government funding if they discriminate against clients based on religion, sexual orientation and gender identity.
Lifting the provision sets up a culture clash pitting those who champion exemptions for faith-based charities against civil liberties groups who claim religious groups receiving government funding should not exclude anyone.
Federal statutes will continue to prohibit discrimination based on nationality and race. Those are enshrined in law, and the executive branch cannot rescind them without Congressional approval.
Opposition to the new rule was swift.
“On any given day there are more than 440,000 in the foster care system in the United States,” said Christina Wilson Remlin, lead counsel for Children’s Rights, a nonprofit New York-based advocacy and legal firm. “Given the context of the foster care crisis in placement options, we simply cannot abide any proposal that would enable taxpayer-funded discrimination against same-sex couples, Jewish couples, Catholic couples, Muslim couples and any other family system whose religious beliefs do not match those of the child-placing agencies.”
Others, such as the United States Conference of Catholic Bishops, applauded the new rule. The Obama provision, they claimed, forced them to shutter foster care and adoption agencies rather than place children with same-sex couples. Catholic teachings prohibit same-sex unions.
But beyond allowing foster care and adoption agencies to refuse to serve same-sex couples, the new rule may also pit religious groups against one another.
The proposed rule was set in motion last year when South Carolina Gov. Henry McMaster asked the Department of Health and Human Services to grant faith-based foster care agencies in South Carolina an exemption to the religious discrimination rule in federally funded foster care programs.
At the time, Miracle Hill Ministries, a Greenville South Carolina charity, accepted only Protestant, churchgoing people to its federally funded foster care program and required participants to sign a statement of faith. That meant it declined serving Jewish or even Catholic families wanting to foster a child.
Miracle Hill, which received about $600,000 in public funding in 2018, asked for the exemption, so it could continue receiving government support
HHS granted it in January. The following month, a Catholic mother of three who was denied an opportunity to volunteer at one of Miracle Hill’s children’s homes sued the federal and state governments, accusing them of religious discrimination. In June and before the case was heard in court, Miracle Hill relented and allowed Catholics to serve as volunteers and foster parents so long as they agree to a doctrinal statement of belief.
It still won’t allow Jews or Muslims or same-sex couples to foster children.
Robin Fretwell Wilson, a professor of law at the University of Illinois at Champaign who advised Utah lawmakers in drafting a bill that bans discrimination against LGBT people while also protecting religious institutions, criticized the new rule for potentially harming vulnerable children.
“We are putting children squarely in the middle of the culture war,” she said. “It’s hard to understand how children are being served by this move.”
The proposed rule is expected to be published in the Federal Register early next week. It will be followed by a 30-day public comment period.