The U.S. Department of Health and Human Services finalized a new rule last week rescinding Obama-era regulations that critics argue constitute “discrimination” against faith-based adoption agencies that don’t place children with same-sex couples.
The DHS, led by Secretary Alex Azar, found that a portion of the Code of Federal Regulations outlining requirements for awardees of HHS funds violated portions of the Religious Freedom Restoration Act.
The code was amended during the latter part of the Obama administration to require all HHS grant-receiving organizations to adhere to rules that forbid discrimination against same-sex couples and LGBT individuals.
Under the Obama-era rule, “all recipients must treat as valid the marriages of same-sex couples” under the Supreme Court decisions United States v. Windsor and Obergefell v. Hodges, which established a constitutional right to same-sex marriage.
The regulation required 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, gender identity, or sexual orientation.”
The Trump administration concluded that “the imposition of certain nonstatutory nondiscrimination requirements on certain faith-based organizations as recipients or subrecipients in the Department’s programs would likely constitute a substantial burden on the exercise of religion.”
The HHS argues that the final rule “better ensures compliance with RFRA, and allows the Department to avoid some situations where a substantial burden on the religious exercise may be applied by requirements that flow from the Department but not from a statute.”
“As a result, the final rule enables the participation of faith-based organizations that participate in or seek to participate in Department-funded programs or activities.”
The department contended that the forbidding of “entities that object to the current regulations” from participating in HHS programs has hurt “the effectiveness of the Department’s programs and in the number of beneficiaries served overall.”
The document detailing the new HHS rule changes specifically cites “faith-based child placement agencies,” which it describes as “critical providers and partners in caring for vulnerable children and youth” as an example of organizations harmed by the previous rule changes.
The Obama-era rule change mandating that HHS awardees “treat as valid the marriage of same-sex couples” had the effect of requiring faith-based adoption agencies to place children with same-sex couples against their religious beliefs or cease partnering with the federal government.
“Some faith-based subrecipients, including some that provide critically important child welfare services to states and local jurisdictions across the child welfare continuum, may not be able to provide needed services – and indeed, might be compelled to withdraw from the provision of child welfare services – if they are forced to comply with the current nonstatutory nondiscrimination requirements," the Trump HHS contends.
Alliance Defending Freedom, a legal nonprofit that specializes in religious liberty cases, commended the rule changes in a statement.
ADF is currently representing two faith-based adoption and foster care agencies involved in federal lawsuits against state officials.
“We commend the Trump administration for protecting a diversity of providers to ensure the greatest number of children find a permanent, loving family,” ADF senior counsel Zack Pruitt said, adding that there are hundreds of thousands of children in foster care throughout the U.S. and faith-based providers play an “integral role in serving these vulnerable kids.”
Pruitt contends that the previous administration “discriminated against faith-based providers simply because of their beliefs about marriage.”
“This is not keeping kids first,” Pruitt argued. “HHS’s final rule to end this discrimination offers hope for children, more options for birth mothers, support for families, and increased flexibility for states seeking to alleviate real human need.”
The new rule has also been praised by other conservative groups, such as the Christian conservative advocacy organization Family Research Council. The U.S. Conference of Catholic Bishops also spoke out against the Obama-era rule, saying it “threatened to shut out faith-based social service providers.”
The new regulation was criticized by LGBT advocacy organizations as well as Democrat members of Congress.
“At the 11th hour, the lame duck Trump-Pence administration has published its parting assault on the LGBTQ community via a federal regulation that would permit discrimination across the entire spectrum of HHS programs receiving federal funding,” Alphonso David, president of the Pro-LGBT Human Rights Council, said in a statement.
With just days left in President Donald Trump’s term and Democrat Joe Biden scheduled to take office next week, the future of the Trump administration’s rule changes remains uncertain. Biden has vowed to push Congress to pass the Equality Act, which would codify discrimination protections based on sexual orientation and gender identity into federal law.
Later this year, the U.S. Supreme Court is expected to rule on whether the city officials in Philadelphia violated the Constitution by severing ties with faith-based adoption agencies over their opposition to placing children with same-sex couples.