Trump Administration Grants South Carolina Foster Care Agencies Authority to Discriminate Against Jewish and Muslim Families

The Trump administration on Wednesday made a quiet move that opens the door for the religious right to use the Religious Freedom and Restoration Act to discriminate against able foster parents whose religious views are in conflict with those of an agency.

On the 33rd day of the government shutdown, Steven Wagner, principal deputy assistant secretary at the Health and Human Services Administration for Children and Families, signed a waiver giving special permission to a federally funded Protestant foster care agency in South Carolina to break federal and state law, using strict religious requirements to deny Jewish, Muslim, and Catholic parents from fostering children in its network.

After months of lobbying by Reid Lehman, president and CEO of Miracle Hill Ministries, South Carolina lawmakers, and Gov. Henry McMaster, Wagner signed a waiver that lets the agency keep its federal funding, despite warnings by the state Department of Social Services that it’s violating federal and state nondiscrimination law, as well as internal agency policy, by denying parents of the Jewish faith from fostering children. The agency also rejects parents who are agnostic and atheist — anyone who is not a Protestant Christian.

“We have approved South Carolina’s request to protect religious freedom and preserve high-quality foster care placement options for children,” Lynn Johnson, assistant secretary for HHS Administration for Children and Families, said in a statement. “By granting this request to South Carolina,” she continued, “HHS is putting foster care capacity needs ahead of burdensome regulations that are in conflict with the law.”

The signed waiver, stalled for months, could have larger ramifications for other states waging battles over religious freedom in the foster care system, legal experts say. The waiver argues that HHS nondiscrimination regulations are broader than those outlined in the specific Foster Care Program Statute, which specifies that agencies receiving federal funding can’t deny foster parents based on race, color, or national origin — but not religion.

“You state that South Carolina has more than 4,000 children in foster care, that South Carolina needs more child placing agencies, and that faith-based organizations ‘are essential’ to recruiting more families for child placement,” the waiver reads. “You specifically cite Miracle Hill, a faith-based organization that recruits 15% of the foster care families in the SC Foster Care Program, and you state that, without the participation of such faith-based organizations, South Carolina would have difficulty continuing to place all children in need of foster care.” The letter then goes on to make the case that if Miracle Hill isn’t provided an exception to federal rules, other “faith-based organizations operating under your grant would have to abandon their religious beliefs or forego licensure and funding,” in violation of RFRA.

Texas Attorney General Ken Paxton in December issued a similar request to the HHS Administration for Children and Families to either repeal the nondiscrimination rules governing federal child welfare funding or to exempt Texas and providers in the state from it. It’s unclear whether the current waiver will apply to the Texas request.

The Texas request clearly asks for permission to discriminate based on religious belief and sexual orientation. The letter to ACF argues that the federal rules governing funding for child welfare programs “does not authorize HHS to prohibit discrimination on characteristics other than race, color, or national origin, or to mandate particular treatment of same-sex marriages.”

“Congress knows how to include or exclude nondiscrimination policies in its welfare funding statues,” Paxton’s letter reads, “and its decision to focus on only race, color, and national origin in Title IV-E means no other forms of discrimination are prohibited by funding recipients.”

The Trump administration has prioritized religious freedom for those of a Christian faith, and conservative lawmakers have used that momentum to try to chip away at a body of federal nondiscrimination law that they argue unfairly burdens organizations that only want to serve people within their own religion.

Eighty Republican legislators in May signed a letter to President Donald Trump on behalf of faith-based Child Placing Agencies they say are being targeted because of their mission. The letter includes a specific recommendation to repeal the federal rule that protects people from discrimination in HHS-funded programs on the basis of religion, race, ability, gender identity, sexual orientation, or any other “non-merit” characteristic. The letter condemns the shortage of foster care parents and the growing population of children in the system, citing the opioid epidemic as a major contributor, and then requests a change to federal rules to allow agencies to deny qualified parents in the name of religious freedom.

“The decision by HHS to allow for taxpayer-funded discrimination is an affront to American values, jeopardizing the safety and protection of vulnerable children in South Carolina, and potentially across the country,” Oregon Democratic Sen. Ron Wyden said in a statement to The Intercept. “It’s appalling that the Trump administration continues to throw the interests of children out the window. There are foster kids sleeping in hotels and living in temporary shelters. To turn away qualified parents because of their religion, sexual orientation or gender identity and deny these kids a secure home is immoral.”

The episode bodes poorly for advocates of civil liberties and religious freedom alike, and opens the door for foster care agencies in other states and players at other HHS-funded agencies, including the offices for Medicare and Medicaid, National Institutes of Health, the Food and Drug Administration, and the Centers for Disease Control and Prevention, among others, to discriminate in the name of religious freedom while keeping their federal funding.