Among the many ways Donald Trump is seeking to leave a lasting imprint on the government in the final days of a beleaguered presidency, the administration this week erased Obama-era rules that prohibited publicly funded, faith-based social service providers from discriminating on the basis of factors such as sexual orientation or religion.
The Department of Health and Human Services, in finalizing the rule on Monday, reversed a policy that it said violated the Religious Freedom Restoration Act. That law prohibits the government from imposing a “substantial burden” on the right to freely practice religion except in “furtherance of a compelling governmental interest” — and even then the burden must be as light-handed as possible.
Some religious providers that get federal money argued that it was unconstitutional to require them to do work that offended their religious convictions, such as helping LGBTQ people adopt or foster children.
Groups that have opposed the rule ever since it was proposed condemned the rule change, which came just eight days before Joe Biden is sworn in as president.
“It is unconscionable that in its closing days, this administration is finalizing a rule change that would roll back non-discrimination provisions for programs funded with taxpayer dollars through the Department of Health and Human Services (HHS), including child welfare agencies,” said Christina Remlin, lead counsel for Children’s Rights, which has spent the past year speaking out against the proposal. The change gives states “a license to discriminate against LGBTQ families and cause profound harm to the most vulnerable children among us.”
Julie Kruse, director of federal policy for LGBTQ advocacy group Family Equality, called the move a “nasty parting shot” from the Trump administration that would never survive the Biden administration but would gum up the works in the meantime.
The effect of the new final rule is not limited to the child welfare and adoption spaces, Kruse told NBC News. It could, for example, also allow a homeless shelter to turn away a queer teen and a senior center to refuse to drive an elderly gay man to his doctor’s appointment, she said.
The Obama rule, finalized in 2016 after the U.S. Supreme Court’s decision in Obergefell v. Windsor made same-sex marriage the law of the land, spelled out an expectation of nondiscrimination for HHS grantees.
The Trump rewrite was not unexpected. The administration in 2019 announced it wouldn’t enforce the Obama rule and granted a waiver on the nondiscrimination policy to South Carolina, which had pursued an exemption on behalf of a Protestant agency that refused to facilitate adoption or foster care services for a Jewish family.
Whether private adoption agencies receiving taxpayer money can deny services to same-sex potential parents is at the heart of Fulton v. City of Philadelphia, now before the Supreme Court. The case centers on Philadelphia’s enforcement of its Fair Practices Ordinance on its contractor, Catholic Social Services (CSS), which based on religious objections refused to screen and certify same-sex couples to be foster parents. The city still contracts with CSS on other child welfare and foster care services but has severed its relationship with the organization on conducting home studies.
Bethany Christian Services, one of the largest faith-based child welfare providers in the country, declined to comment when reached by The Imprint. Catholic Charities USA did not return emails asking for its reaction to the rule change.