The Trump administration has granted South Carolina an exception to rules barring federal funds to discriminatory providers, a decision that opens the door to more challenges by states that wish to shield religious groups from penalties.
The Department of Health and Human Services (HHS) approved a request by South Carolina Gov. Henry McMaster (R) to allow federal funds for Miracle Hill, which only recruits Christian foster homes, and any other faith-based “sub grantee” in the state “that uses similar religious criteria.”
“This decision sets a dangerous precedent: if South Carolina agencies receiving federal taxpayer funds can discriminate so long as they cite ‘religious freedom,’ that means it can happen in other states, too,” said Christina Remlin, lead counsel for Children’s Rights, a nonprofit litigation firm involved in a recently settled class-action lawsuit against South Carolina. “Turning away otherwise qualified parents simply because they do not pass a specific religious litmus test threatens the well-being of children by denying them the opportunity to find loving, stable homes.”
Miracle Hill’s Christian-only posture stands in violation of HHS policies put in place late in the Obama administration, which state that no person can be excluded from HHS-funded programs or services based on “non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity or sexual orientation.”
While a religious test does not explicitly preclude same-sex couples, Remlin said with this waiver “they have the right to say, ‘You’re not the kind of family we think is part of our mission.’ I don’t know of any evangelical communities of faith that would be welcoming to gays and lesbians even if they identified as Christians.”
In early 2018, South Carolina Department of Social Services threatened Miracle Hill with de-licensure if it did not alter its policy of recruiting only Christian families. It refused, but the organization did get a provisional license to continue while McMaster sought a federal waiver.
Since that time, South Carolina has passed a bill protecting faith-based child welfare providers. The HHS decision now permits Miracle Hill to receive both state and federal funds to operate while refusing to serve any non-Christian family.
“We are deeply gratified by this decision, which allows Miracle Hill Foster Care to keep its license and continue serving nearly 200 foster children and more than 230 foster families,” said Miracle Hill CEO Reid Lehman, in a statement issued today. “It’s always been about the license, our right to exist.”
The federal policy question is one of several Obama rules that more than six dozen Congressional Republicans urged the president to roll back, in a letter sent last summer. The letter was penned by Rep. Mike Kelly (R-Penn.) and Mike Enzi (R-Wyo.), who also wrote a bill protecting faith-based providers, which mirrors legislation passed now by 10 states and which found its way into spending bills last year. Three of those states approved laws in 2018: Kansas, Oklahoma and South Carolina.
The administration has not rewritten HHS policies on discrimination. But its letter today informed McMaster that in this case, “requiring … Miracle Hill to comply with the religious non-discrimination provision” would “cause a burden to religious beliefs that is unacceptable under the RFRA [Religious Freedom Restoration Act].”
Children’s Rights represented the plaintiffs in Michelle H. v McMaster, a class-action lawsuit against South Carolina that focused on the state’s high caseloads for workers and failure to provide foster homes for youth who have been removed from their parents. A settlement was reached in the case in 2016 – since that time, Paul Vincent of the Child Welfare Policy and Practice Group and Judith Meltzer of the Center for the Study of Social Policy have served as independent monitors overseeing reforms.
South Carolina argued in its pursuit of the waiver for Miracle Hill that many other faith-based groups in the state do not discriminate in recruitment of foster and adoptive parents, and that the exception for this provider was critical to increasing the state’s foster care capacity.
HHS was receptive to the argument, stating in its letter today that the federal rules “cause a significant programmatic burden for the [South Carolina] foster care program by impeding the placement of children into foster care.
Children’s Rights rejected that argument.
“South Carolina is already facing a severe shortage of foster homes and inappropriately over-uses group homes,” Remlin said, in a statement released after the decision by Children’s Rights. “Limiting the pool of prospective foster and adoptive parents based on their failure to pass a religious litmus test will deprive children of suitable, loving and stable homes.”
Remlin said the firm is considering taking action to fight the exemption. “Along with our partners and allies on this issue, we are currently exploring all legal avenues.”