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

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 Insider has 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 Rudd (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.”

UPDATE: Tennessee now appears poised to pass a law enabling discrimination by faith-based child welfare providers. Rudd’s House bill passed in early April, and has been paired with a Senate bill introduced in February by Sen. Paul Rose (R). The Rose bill got approved by the Senate Judiciary Committee this week.

The bills prohibit “a private licensed child-placing agency from being required to perform, assist, consent to, refer, or participate in any child placement for foster care or adoption that would violate the agency’s written religious or moral convictions.” They also include the standard language from previous discrimination bills about prohibiting adverse actions by state or local government agencies.

The ACLU of Tennessee issued a statement that suggests it might challenge the law should it pass. From executive director Heidi Weinberg:

ACLU of Tennessee has long defended, and will continue to defend, our fundamental right to religious freedom, which protects all of us from government interference in when, whether and how we choose to practice our faith. What religious freedom does not do is grant government-contracted child welfare agencies the right to impose their own religious eligibility criteria on important government programs.

UPDATE: The Tennessee Senate has voted to delay consideration of this legislation until next January.

Arkansas

UPDATE: Arkansas, it turns out, has also seen a faith-based child welfare bill introduced this session. With little fanfare, State Sen. Alan Clark (R) dropped a bill similar to those passed in other states back in mid-February.

A group of national child welfare experts did notice the bill, and slammed Clark’s proposal in a recent op-ed for the Northwest Arkansas Democrat Gazette.

“It is written right into Arkansas law: ‘[O]ur child welfare system needs to be strengthened by establishing a clear policy … that the best interests of the children must be paramount,'” said the op-ed. “In short, the state has promised to place the needs of the state’s most vulnerable children first.”

UPDATE: Clark’s bill did not make it out of the Judiciary Committee, and was referred for further study on the last day of the legislative calendar this week.

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.

UPDATE: A group of six Republican state senators have introduced an all-encompassing religious freedom bill that would shield faith-based child welfare providers who wished to be selective in which parents they served. The bill has been referred to the Senate Judiciary Committee.

Children’s Rights Lead Counsel Christina Remlin said the bill would hinder the state’s ability to find good foster care options for some kids in care.

“LGBTQ youth could find themselves targeted by the very system charged with keeping them safe,” Remlin said, in a statement issued after the bill was introduced this week. “State-sanctioned discrimination at the expense of our children is not a value that Georgia should enshrine in law.”

UPDATE: The religious freedom bill stalled in committee.

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.

UPDATE: As expected, Nessel has settled with the ACLU in this case. Michigan will require all of its contractors to comply with the state’s non-discrimination requirements, and accept all qualified families.

“This is a victory for the nearly 12,000 children in foster care in Michigan who need loving families like those offered by our clients,” said Leslie Cooper, deputy director of the ACLU LGBT & HIV Project, in a statement announcing the agreement. “When agencies choose to accept taxpayer dollars to provide public child welfare services, they must put the needs of the children first.”

UPDATE: St. Vincent Catholic Charities, one of the faith-based providers involved in the Dumont v. Lyon case, is challenging the settlement in federal court. The Becket Fund for Religious Liberty filed the lawsuit with the U.S. District Court for the Western District of Michigan on April 15.

Becket was dealt a recent blow in federal court in a case similar to this in Philadelphia. As with Michigan, the city has a nondiscrimination policy, and severed ties with Catholic Social Services for not following it.

This month, a three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled that Philadelphia “stands on firm ground in requiring its contractors to abide by its nondiscrimination policies when administering public services,” per the opinion written by Judge Thomas Ambro.

Becket, which represented Catholic Social Services, intends to appeal the case to the Supreme Court.

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 (introduced; see above)
  • Florida (no bill so far)
  • Georgia (introduced; 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)

Note: This article was updated on May 1, 2019


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John Kelly
About John Kelly 1071 Articles
John Kelly is editor-in-chief of The Chronicle of Social Change.