License to Discriminate: What to Watch for in 2019 with Faith-Based Protection Laws

In 2018, three states – Kansas, Oklahoma and South Carolina – joined the ranks of seven other states in passing laws to enable faith-based child welfare providers to discriminate against foster and adoptive parents, or even foster youth. There was also a lawsuit filed against the Department of Health and Human Services (HHS) for permitting its faith-based grantees to discriminate against a lesbian couple seeking to foster a refugee child.

Where will the action be on faith-based protections in 2019? Youth Services Insiderhas been asking around. Here’s what we know so far.

Capitol Hill

Already this year, the Trump administration approved a waiver request that permits South Carolina faith-based providers to refuse any prospective foster parent, or even volunteer, based on their religion. A rule put in place by the Obama administration expressly forbid discriminatory practices by federal child welfare grantees.

Critics of the decision fear that it is just the tip of the iceberg, and that the administration will either grant that leeway to any state asking or just rescind the Obama-era rules. A group of Republican congressmen signed a letter asking Trump to do just that in the summer of 2018.

President Trump did not assuage any wariness with his remarks at last week’s National Prayer Breakfast: “My administration is working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families while following their deeply held beliefs.”

Meanwhile, Sen. Mike Enzi (R-Wyo.) and Rep. Mike Kelly (R-Penn.) have reintroduced their Child Welfare Provider Inclusion Act, which would put in place federal penalties for states that didn’t allow faith-based child welfare providers to discriminate. The bill found its way into the House appropriations process last year, but was cut out before passage.

Tennessee

Tennessee was the first state to see a faith-based child welfare bill introduced this session. A version of the legislation was introduced in the Tennessee State Senate by Joey Hensley (R), and in the House by Rep. Tim Mudd (R).

“I don’t think a gay couple is the best environment for children,” Hensley told the Tennessean. “Certainly, legally, they can adopt children and they can have children, but I think every child needs a mother and a father. The best environment is a mother and a father.”

Oklahoma

faith-based child welfare
Former Oklahoma Gov. Mary Fallin (R), who last year made the state the eighth to pass laws protecting the right of faith-based groups to discriminate in child welfare services. Photo by the Office of the Governor

As mentioned, Oklahoma passed a faith-based protection bill last year. This year, a bill has been introduced that would take the teeth out of that law.

House Bill 2533, introduced by State Rep. Meloyde Blancett (D), would amend last year’s law with one small but significant addition. In the description of faith-based providers that could be protected in discriminating by the bill, she would limit it to groups “receiving neither federal nor state funds.”

In other words, faith-based groups could be selective in recruiting foster and adoptive parents. But only on their dime. This is the case with Arkansas’ biggest foster home recruiter, The CALL, which brings in close to half of the state’s licensed homes but does not use a penny of public funds.

Georgia

Throughout his second term, former Gov. Nathan Deal (R) fought off attempts by his party to pass a faith-based protection bill, including a veto in 2016. Last year, it passed in the Senate, where it was introduced by Sen. William Ligon (R), but never made it to Deal’s desk.

The state’s newly elected Gov. Brian Kemp (R) said during the campaign that he would welcome a so-called religious liberty bill, but within reason. He indicated in comments to the Atlanta Journal-Constitution that such legislation would have to mirror the federal Religious Freedom and Restoration Act.

Aviel Vargas, Ligon’s legislative assistant, told Youth Services Insider that Ligon has not decided whether he will re-introduce a bill this year.

Michigan

Like Oklahoma, Michigan already has a faith-based protection law on the books. Dana Nessel, the state’s newly elected attorney general, has indicated a willingness to settle with the ACLU of Michigan in a lawsuit that indirectly challenges that law.

The case, Dumont v. Lyon, stems from two lesbian couples who sought to adopt foster youth and were turned away by faith-based agencies contracted by the Michigan Department of Health and Human Services (DHHS). A federal district court judge ruled in September that the case could go forward.

But plaintiffs aren’t challenging the law itself. They argue that all DHHS contractors have agreed to comply with DHHS’ non-discrimination statement, which mandates they won’t discriminate against anyone based on a long list of demographic items, including sexual orientation.

Nessel said she has no intention of defending the state’s law, and has also announced plans to settle with the ACLU on the Dumont lawsuit.

Kansas

Gov. Laura Kelly during her inauguration as governor of Kansas. Photo courtesy of Laura Kelly

New Gov. Laura Kelly (D) voted against the faith-based protection bill passed by Kansas last year. In an interview last month with The Chronicle of Social Change, she was transparent about her intention to push back as much as possible on the law:

“My first executive order was to put back in place the anti-discrimination clauses for LGBTQ in the administration. I will look for ways, if there are any ways, administratively I can ensure we aren’t using state dollars to subsidize entities that discriminate. If I can’t do that, I’ll work with the legislature to get that reversed.”

Colorado

A faith-based protection bill has been introduced in Colorado, the same one that was introduced last year. Advocates believe this bill is dead on arrival, because both chambers of the state legislature are controlled by Democrats and Gov. Jared Polis (D) would not sign it anyway.

GOP “Trifecta” States

The legislative season is still relatively young, so it is certainly possible that faith-based bills will pop up in other states. The most likely candidates – at least in terms of a bill that could pass – will be those where the governor is a Republican and Republicans control both chambers of the legislature.

Here’s a list of those states, minus the ones that have already passed a faith-based protection law. YSI asked the ACLU branch in each GOP trifecta state if they had seen action; parentheses indicate if we heard back:

  • Alaska
  • Arizona
  • Arkansas
  • Florida (no bill so far)
  • Georgia (no bill so far; see above)
  • Idaho (no bill so far )
  • Indiana
  • Iowa (no bill so far)
  • Kentucky
  • Missouri
  • Nebraska (none; timeline for new legislation has passed)
  • Ohio (no bill so far)
  • Tennessee (introduced; see above)
  • Utah (nothing yet, though ACLU of Utah notes it is closely tracking because of interest in these laws by one daily newspaper, the Deseret News)
  • West Virginia (nothing yet)
  • Wyoming (nothing yet)

WEBINAR ALERT!

Learn more about the federal rule change on funding legal representation for families in our exclusive webinarA New Era of Funding Family Justice, with Leslie Heimov and Vivek Sankaran on Feb. 21st. Hosted by John Kelly, Editor-in-Chief for The Chronicle of Social Change.

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John Kelly is editor-in-chief of The Chronicle of Social Change.