The Trump administration granted a waiver to South Carolina this week allowing the state to provide federal funding to a foster care agency that works only with Protestant foster parents.
In its decision, the U.S. Department of Health and Human Services said it was approving the request from Gov. Henry McMaster “to protect religious freedom and preserve high-quality foster care placement options for children.”
Lynn Johnson, assistant secretary of the HHS Administration for Children and Families, said in a statement, “The government should not be in the business of forcing foster care providers to close their doors because of their faith. Religious freedom is a fundamental human right."
The decision could prompt additional states to ask for exemptions for religious groups, and elevates interest in the outcome of a case in Philadelphia that ignited national conversations related to religious rights of social service agencies.
The waiver allows South Carolina to continue a federally funded contract with Miracle Hill Ministries, which has worked with Protestants for 15 years and has a policy of turning away prospective parents of other religions as well as LGBTQ parents. The waiver also applies to any agency in South Carolina that uses religious criteria in selecting prospective foster care parents so long as they refer parents who don’t meet their criteria to the state.
The exemption was needed because of a regulation added under President Barack Obama that prohibits publicly funded foster care agencies from discriminating against people based on religion, gender identity, or sexual orientation.
But the Administration for Children and Families wrote in its letter granting the waiver that the 2016 regulation was broader than a federal statute that only prohibits discrimination based on race, color, or national origin. The administration found that refusing Miracle Hill a contract violated the agency’s religious freedoms and put a burden on the child welfare system, which needs good foster homes.
Catholic Social Services has made the same argument in courtrooms in Philadelphia. In that case, Philadelphia suspended CSS’s contract after learning the agency has a policy not to work with LGBTQ foster parents. The city has a nondiscrimination ordinance for city contractors. CSS sued the city, arguing that scrapping its contract violated its religious freedom. A federal judge found in favor of the city in July. The agency appealed to the U.S. Supreme Court, which declined to hear the case. Now, both parties are waiting on a three-member appellate panel to issue an opinion. The panel heard arguments in November.
“This is about a state asking to allow agencies to discriminate,” said Leslie Cooper, deputy director of the ACLU LGBT & HIV Project. “Philadelphia is in the opposite position. Philadelphia does not want to allow discrimination.”
Cooper said the waiver’s spillover effect for now will be minimal. The waiver does not say states must exempt religious agencies that discriminate, but does open the door to other states seeking similar waivers. Texas' attorney general already has asked for a waiver to allow exemptions for religious groups, Cooper said.
The waiver is unlikely to have any affect on ongoing legal cases in Michigan and Philadelphia, Cooper said.
But it could prompt legislation from Congress, either to broaden the federal nondiscrimination statute to include religion and sexual orientation, or to pass a law explicitly allowing religious providers to discriminate. A Provider Inclusion Act, introduced in the House and the Senate in 2017, would protect providers with “sincerely held religious or moral convictions.”
Cathleen Palm, who founded the Center for Children’s Justice, said conflicts between local governments and the religious agencies that contract with them have been popping up nationwide at a time when the need for foster parents remains high. “We do need as many viable and safe and protective options available to give kids as possible," Palm said. "So we do have to be careful as to how much we get ourselves dug in.”
Still, Palm said, the idea of compartmentalizing groups bothers her. “As a parent first and an advocate second, it’s troubling because it really cultivates this idea that we’re so different from each other. So, you of Jewish faith can’t come over to my Christian foster care agency, and, it’s like, shouldn’t we fundamentally be about what we want to do on behalf of children?”
Palm, whose organization is based in Berks County, said she thinks a lot of eyes are now on Philadelphia.
"The Philly case now has more implications because depending on what the court decides, the case could make it to the Supreme Court and really open up the door of evaluating when, and how, and if public dollars can be spent on services that are provided within the guise of ‘we only provide these services to certain folks.’”