Supreme Court arguments in another faith-based case set for day after election
Two significant developments occurred this week that have the potential to shape the limits of how far faith-based, publicly funded child welfare agencies can go in selectively choosing what foster or adoptive parents they are willing to work with.
On Wednesday, the Democrats on the House Ways and Means Committee issued a scathing majority report that found that the federal Department of Health and Human Services was out of line when it approved South Carolina’s request for a waiver that allowed government-funded agencies to discriminate against potential adoptive families on religious grounds.
The department “inappropriately empowered staff who lack child welfare expertise to apply never-before-used administrative grant regulations and to enact a policy that would harm vulnerable children,” the report said.
In addition to prompting the late Rep. John Lewis to call for the House investigation, HHS’s granting of the waiver sparked a federal lawsuit against the state and HHS by a Catholic woman in South Carolina. The woman was interested in adopting a child through Miracle Hill Ministries, an agency affiliated with an evangelical church, but she was told she could not because she didn’t subscribe to, among other things, the adoption agency’s notion that adoptive families must be free of “sexual sin.” The district court declined the state and federal governments’ separate requests to throw out her case and allowed it to proceed.
The Ways and Means report alleges that the waiver unconstitutionally allows publicly funded discrimination against LGBTQ couples and created a serious detriment to the goal of providing foster children with a secure, loving family.
The House committee’s Democratic investigative report struck a tough tone in its assessment of HHS’s decision to grant South Carolina an exemption from HHS regulations that prohibit discrimination in the state’s child welfare system.
It concluded that the waiver violates the legal requirement to act in children’s best interest and found that Miracle Hill’s discrimination could make South Carolina’s foster parent shortage even worse. (There are more than 4,000 young people in the state’s foster care system, a disproportionate number of them LGBTQ.)
It also said HHS’s waiver recognized the negative consequences for LGBTQ Americans, yet it was approved anyway, setting a precedent that other states might also seek. It even accused the department of stonewalling the committee investigation and demanded that it be given the information it asked for long ago.
The report said HHS didn’t do its homework before granting the sweeping waiver. The committee staff recommended the agency pull its waiver to protect children and suggested that in the future, the department should make a practice of consulting experts in child welfare and publish their comments before making “major policy changes not mandated by Congress.”
In the other development on Wednesday, the U.S. Supreme Court set Nov. 4, the day after the general election, as the date for hearing oral arguments in Fulton v. City of Philadelphia, which raises issues similar to the South Carolina case. In Fulton, the child welfare provider, Catholic Social Services, sued the city after the city suspended the agency’s participation in the city-funded foster adoption system because of CSS’ alleged religious discrimination against same-sex couples. The agency claimed the city interfered with its free exercise of religion guaranteed by the establishment clause of the First Amendment.