In a move expected for months, the Trump administration has announced it will no longer enforce an Obama-era rule insisting that federally funded child welfare providers refrain from discrimination against adults and children based on religious values.
The Obama rule, finalized in 2016 after the Obergefell v. Windsor Supreme Court decision made same-sex marriage the law of the land, spelled out an expectation of non-discrimination for grantees of the Department of Health and Human Services (HHS):
It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.
This policy walled off faith-based providers from receiving federal money if they wished to be selective in which prospective foster or adoptive parents, or children, they would serve. Last year, the Trump administration awarded a waiver on this policy to South Carolina, which had pursued an exemption on behalf of one of its private faith-based providers.
Today, HHS announced a proposed rule that removes this standard for all states. It will be subject to a public comment period before potential finalization. It also announced it would not enforce the existing rule while the new proposal was under consideration.
“HHS is committed to fully enforcing the civil rights laws passed by Congress,” it said in a press release from HHS today. “The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion.”
Children’s Rights, a nonprofit child welfare advocacy and litigation organization, decried the rollback of the rule.
“We are witnessing the full force of the United States government being used to enshrine discrimination into law – all at the expense of defenseless foster children who need and deserve loving homes,” said Sandy Santana, the organization’s executive director, in a statement. “At a time when we are already experiencing a severe shortage of foster homes across the country, our policies should encourage placing children with safe and loving families – period.”
HHS argues in its new proposal that the Obama rule erred in focusing policy on the outcome of one single Supreme Court case instead of “all applicable nondiscrimination statutes and Supreme Court decisions.” Further, HHS notes concerns by “some non-federal entities” that the rules violate the Religious Freedom Restoration Act” and “exceed [HHS] authority.”
In a claim that is not substantiated with data, the proposed rule asserts that the Obama non-discrimination policy had the effect of “reducing foster care placements in the Title IV-E program of HHS’s Administration for Children and Families.”
While the Obama-era policy may have limited funds to faith-based providers unwilling to work with LGBTQ or single candidates for foster parenting, there is no evidence offered to suggest that the number of available foster homes in America has declined, either in general or as a result of this policy. A recent 50-state research project by The Chronicle of Social Change found that the number of licensed foster homes in the country increased from 2018 to 2019.
Opponents of the policy change argued the rule change could actually lower the number of foster and adoptive homes available to youth who have experienced foster care, particularly children who identify as LGBTQ.
“It is outrageous that the Trump administration would mark the start of National Adoption Month by announcing a rule to further limit the pool of loving homes available to America’s 440,000 foster children,” said Julie Kruse, director of federal policy at Family Equality, in a statement on the rule change. “The American public overwhelmingly opposes allowing taxpayer-funded adoption and foster care agencies to turn away qualified parents simply because they are in a same-sex relationship.”
According to a 2017 survey by the Public Religion Research Institute, only 28 percent of Americans support federal funding for agencies that refuse to place children with a gay or lesbian foster or adoptive parent.
The ability of faith-based child welfare providers to refuse to work with certain clients has been a hot-button issue in the states since the Obergefell ruling in 2015. To date, 10 states have passed laws that granted their faith-based providers a license to follow their faith in accepting referrals: Alabama, North Dakota, South Dakota, Virginia, Mississippi, Michigan, Texas, Kansas, Oklahoma and South Carolina.
Several members of Congress have urged Trump to take measures at the federal level to protect faith-based providers. In 2018, a group of 80 congressional members sent a letter to Trump outlining steps the administration could take without legislation, including what HHS did today.