Business owners wishing to follow their faith in selecting customers to serve scored at least a temporary victory this week in the U.S. Supreme Court’s decision on the now-famous wedding cake case.
On the heels of legislative victories in several states, Republican leaders are hoping to help religious charities working in the child welfare arena do the same. As foster care numbers in the U.S. continue to rise, they argue that religious charities should be able to be select which foster and adoptive parents to work with based on religious beliefs.
Two more states added bills protecting faith-based foster care providers who want to discriminate against same-sex couples and single parents this year. And some Congressional Republicans are hoping to build new momentum for a federal law protecting such organizations.
A group of members in both chambers, led by Sen. Mike Enzi (R-Wyo.) and Rep. Mike Kelly (R-Penn.) have asked President Trump to use executive branch powers to protect faith-based providers that refuse to recruit foster and adoptive parents if they have to approve LGBTQ or unmarried candidates.
“Our nation is facing a crisis in foster care and adoption,” said a letter, penned by the two and co-signed by 78 other members of Congress. Faith-based agencies “are often the most successful” in recruitment, and “now face mounting threats to their ability to continue doing their critical and mission-driven work.”
The letter asks Trump to consider the following measures at the Department of Health and Human Services (HHS):
- Ensure that HHS funding is not “being used to exclude any qualified faith-based agencies.” The letter suggests enforcement against jurisdictions found to be canceling contracts or prohibiting faith-based providers that will not license any foster or adoptive candidate.
- Rescinding two current federal policies that require HHS funding recipients not to discriminate in the administration of the money, and require recipients to recognize same-sex marriages. The letter said the two policies “wrongfully target faith-based Child Placing Agencies.”
- Review all policies and identify any that create obstacles for faith-based agencies in the child welfare space.
Enzi and Kelly have been pushing a bill for the past three years that would restrict federal funds for states that did not permit discrimination by faith-based child welfare providers. The Child Welfare Provider Inclusion Act of 2018 would empower HHS to dock 15 percent of federal child welfare funds to any state that takes “adverse action” against a child welfare service provider that declines “to provide, facilitate, or refer for a child welfare service that conflicts with … the provider’s sincerely held religious beliefs or moral convictions.”
Heading into this year’s legislative season, seven states had enacted laws to shield their faith-based foster care and adoption providers from adverse actions, freeing them to turn away couples based on the religious beliefs of the organization.
This year, two more – Oklahoma and Kansas – followed suit. A similar bill was stifled in the Georgia legislature.
The role of faith-based child welfare providers met with controversy in 2011, when Illinois canceled the contracts of any provider that would not recognize a couple joined in civil union. In 2014, at a federal policy roundtable on child welfare hosted by the Senate Finance Committee, former Heritage Foundation analyst Sarah Torre argued for legislation like Enzi’s to shield faith-based providers.
The new surge in state-level protections began in 2015, after the Supreme Court ruled that same-sex marriage was the law of the land. Along with Oklahoma and Kansas, the other states that have passed faith-based protection bills are Alabama, North Dakota, South Dakota, Virginia, Mississippi, Michigan and Texas.
Like the Colorado baker’s case, the issue of faith-based providers may be destined for the high court. The ACLU is contesting a law in Michigan, and one major LGBTQ advocacy group in Oklahoma told Youth Services Insider that it intends to challenge the new state law there.
HHS itself was also recently sued by a lesbian couple that was denied approval – by an HHS grantee – to adopt a refugee child. The grantee declined to license Fatma Marouf and Bryn Esplin because they didn’t “mirror the holy family.”
A bill that runs counter to Enzi and Kelly’s has been introduced by Rep. John Lewis (D-Ga.). The Every Child Deserves a Family Act (H.R. 2640) prohibits any recipient of federal assistance for adoption and foster care placements from discriminating against any potential client.