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HHS revokes religious exemption waivers for faith-based foster care providers in 3 states

Xavier Becerra
Then-California Attorney General Xavier Becerra speaks outside the U.S. Supreme Court in Washington, D.C., November 12, 2019. |

The Biden administration is revoking Trump-era waivers from federal nondiscrimination law granted to faith-based foster care providers in three states, drawing pushback from Christian conservatives and praise from progressives. 

In a statement Thursday, the U.S. Department of Health and Human Services announced that it would rescind waivers granted to faith-based child welfare agencies in Michigan, South Carolina and Texas that contract with the federal government.

The waivers exempted those organizations from nondiscrimination requirements imposed on recipients of federal grants mandating 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.”

The HHS statement contends that the waivers constituted a “blanket use of religious exemptions against any person or blank checks to allow discrimination against any persons, importantly including LGBTQ+ persons in taxpayer-funded programs.” HHS Secretary Xavier Becerra justified the reversal of the “inappropriate, overly broad waivers” as necessary to ensure that the department is “best prepared to protect every American’s right to be free of discrimination.”

“Today’s action supports the bedrock American principle and a core mission of our Department – to ensure Americans have access to quality health and human services,” he said.

“With the large number of discrimination claims before us, we owe it all who come forward to act, whether to review, investigate or take appropriate measures to protect their rights. At HHS, we treat any violation of civil rights or religious freedoms seriously.”

In a statement, the Southern Baptist Convention's Ethics & Religious Liberty Commission called the HHS move "deeply troubling for faith-based organizations and people who serve communities in their states according to their religious beliefs."

"The waivers granted to these states protect the religious freedom of faith-based groups serving vulnerable children," an explainer document written by ERLC staff reads. 

"We need more organizations serving children in foster care, not less. There are currently 423,997 children in the U.S. foster care system, and that number is likely going to continue to increase due to the COVID-19 pandemic and its affect on families. At a time when children need safe, permanent, and loving homes, the government should be ensuring that more providers can serve."

ERLC Acting President Brent Leatherwood said the HHS' actions also "reveal an animus toward people of faith."

"Instead of a government that serves the people, these actions show a government willing to target groups for their beliefs," Leatherwood said. "This has the effect of further eroding trust at a time when government institutions can least afford it. Our public square cannot continue to sustain these sorts of reckless and arbitrary changes that are rooted in political ideology, especially those that punish faith-based adoption agencies and religious organizations."

The HHS action received praise from progressive organizations, including Americans United for Separation of Church and State. 

"Rescinding these damaging Trump waivers is a critical 1st step," Americans United President Rachel Laser said in a statement. "DHHS should never allow taxpayer-funded foster care agencies to use religion to discriminate against those who want to help children in foster care."

"The Religious Freedom Restoration Act was never intended to be used to allow discrimination against participants in government-funded programs or to grant sweeping exemptions to social service providers to ignore civil rights laws," she added. 

During the Trump administration, the Department of Health and Human Services granted a waiver to Texas in response to a lawsuit filed by the state and the Roman Catholic Archdiocese of Galveston-Houston alleging that federal laws requiring recipients of federal grants to “refrain from discriminating on the basis of sexual orientation, gender identity, and same-sex marriage status” violated the Religious Freedom Restoration Act.

Then-Director of the HHS Office for Civil Rights Roger Severino elaborated on the archdiocese’s concerns in a Mar. 5, 2020 letter to Texas Attorney General Ken Paxton. “OCR understands that the Archdiocese desires to participate in the Title IV-E program as part of its religious mission to care for needy children and to show concern for the well-being of its neighbors,” he wrote.

“OCR also understands that the Archdiocese, consistent with its sincere religious beliefs, considers marriage to be the exclusive union between one biological man and one biological woman, that sexual relations are properly reserved to such a marriage, and that it cannot engage in activities that condone or could be seen as condoning behavior inconsistent with those beliefs.” 

From the perspective of the archdiocese, placing children with same-sex couples amounts to “condoning behavior inconsistent” with Catholic teachings about marriage and sexuality.

The OCR agreed that the federal mandate ran afoul of the Religious Freedom Restoration Act and granted the archdiocese and “other similarly situated entities” a waiver from abiding by the nondiscrimination requirements.

The HHS waiver to Texas followed a similar waiver granted to South Carolina in 2019 in response to concerns that failure to provide an exception to the federal law would require faith-based organizations that participate in the state’s foster care program to “abandon their religious beliefs or forego licensure and funding.”

In a letter to South Carolina Gov. Henry McMaster, then-Principal Deputy Assistant Secretary of the Administration for Children and Families Steven Wagner noted the faith-based subgrantee Miracle Hill Ministries “exclusively recruits foster parents of a particular religion.”

However, federal regulations prohibited subgrantees from selecting among prospective foster care parents based on religion.

Like their counterparts in Texas, South Carolina officials believed that the aforementioned requirements violated the Religious Freedom Restoration Act.

The Trump administration granted the requested exemption to Miracle Hill Ministries or “any other subgrantee in the SC Foster Care Program that uses similar criteria in selecting among prospective foster parents” on the condition that they refer such parents to other foster care providers.  

The HHS announcement comes five months after the U.S. Supreme Court ruled unanimously in the case of Fulton v. City of Philadelphia that the city of Philadelphia couldn’t exclude a Christian foster care agency from its foster care program because it refused to place children with same-sex couples in violation of its religious beliefs.

The Biden HHS drew condemnation from Sen. James Lankford, R-Okla., who is Baptist. He argued in a Twitter thread that "Becerra is pushing a discriminatory agenda at the expense of religious freedom and kids in foster care." 

"Biden’s HHS Secretary is again using the power of his office to attack people of faith who disagree with him. Yesterday he revoked waivers for faith-based children's service programs—this is outrageous. His policy will reduce options for kids in foster care," Lankford wrote.

"[Five] months ago the Supreme Court ruled 9-0 that 'the refusal of Philadelphia to contract with CSS for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.'"  

Earlier this month, the U.S. Department of Labor unveiled a proposed change that would roll back a rule adopted during the Trump administration that gave entities that contract with the federal government exemptions from nondiscrimination law that gave them more leeway to make hiring decisions in accordance with their religious beliefs.

In May, the Biden administration implemented a rule mandating that recipients of federal funding under the Title X family planning program provide referrals for abortions even if doing so violates their religious beliefs.

Ryan Foley is a reporter for The Christian Post. He can be reached at: ryan.foley@christianpost.com

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