On Wednesday, the Trump administration gave those anti-LGBT efforts a boost by granting a request from the governor of South Carolina to allow federally-funded child welfare agencies to turn parents away based on religious beliefs.
As CNN reported, South Carolina Gov. Henry McMaster had asked the Department of Health and Human Services in February of last year to exempt the state’s faith-based child welfare agencies from Obama-era non-discrimination regulations protecting LGBT and other couples.
Although McMaster’s February 2018 letter made no direct mention of sexual orientation or same-sex couples, he specifically referenced a subsection of the Code of Federal Regulations which requires child welfare agencies that receive federal funding to “treat as valid the marriages of same-sex couples,” in accordance with the 2015 Obergefell v. Hodges Supreme Court decision.
That particular subsection, McMaster claimed, forced faith-based child welfare agencies like Miracle Hill in Greenville to “abandon their religious beliefs or forgo the available public licensure and funding.”
Dozens of civil rights organizations wrote a letter to HHS regarding the McMaster request, saying that granting an exemption would be, in effect, “taxpayer-funded discrimination.”
In response on Wednesday, HHS issued a first-of-its-kind exemption for the state.
LGBT and other civil rights advocates say it’s a continuation of what we’ve already seen in states like Kansas and Oklahoma, which both passed laws last year carving out room for faith-based child welfare agencies to cite religious beliefs in placement decisions.
“There is absolutely a direct line because there’s a chronology here,” David L. Barkey, national religious freedom counsel for the Anti-Defamation League, told The Daily Beast. “First this happened on the state level, and then Miracle Hill moved forward with the application to HHS.”
Because the exemption is broad, advocates are concerned it may be used to discriminate not just against LGBT parents but also against Jewish parents and other families. Rachel Laser, president of Americans United for Separation of Church and State, said that both the recent state-level adoption bills and the new HHS exemption are examples of “an emboldened religious right which now has a partnership with the Trump-Pence administration.”
“I think it’s important to see the whole here,” said Laser.
In 2018, as The Daily Beast previously reported, the Human Rights Campaign warned that anti-LGBT groups were moving away from more sweeping anti-LGBT legislation toward more “sector-specific” bills targeting areas like education, adoption, and wedding services.
That strategy paid off in Kansas and Oklahoma that same year—although now, according to the Associated Press, Kansas’s new Democratic governor Laura Kelly may find a way to block her state’s anti-LGBT adoption law.
At present, according to the Movement Advancement Project, 10 states including South Carolina allow child welfare agencies to turn away LGBT prospective parents based on their religious beliefs.
Legal challenges around this issue remain underway. LGBT advocacy group Lambda Legal, for example, sued HHS last year on behalf of a lesbian couple who say that the U.S. Conference of Catholic Bishops denied their application to be foster parents because they did not “mirror the Holy Family.”
Lambda Legal condemned the HHS waiver for South Carolina on Wednesday, saying that the waiver effectively punishes children in the foster care system who need homes.
“Organizations which receive taxpayer funding and provide government functions, like foster care services, are required to comply with constitutional protections which protect Americans from discrimination,” Currey Cook, director of Lambda Legal’s Youth in Out-Of-Home Care Project, said in a statement. “There should not be a special pass around those rules. This is unacceptable and alarming.”
Although the waiver “is specific to South Carolina,” as Cook noted in his statement, the Trump administration’s involvement could have “enormous implications.”
Advocates warn that anti-LGBT groups ultimately want to secure exemptions for all taxpayer-funded faith-based child welfare agencies in the U.S.
Last July, as NBC News reported, House Republicans put forward an amendment from Alabama Representative Robert Aderholt that would bar both federal and state governments from taking “adverse action” against child welfare agencies that operate in accordance with their “sincerely held religious beliefs or moral convictions.”
Ultimately, in September 2018, the “Aderholt amendment” failed in the Senate when it was stripped from a funding bill. But for civil rights advocates, the memory of the Aderholt amendment is still fresh—a reminder of the ultimate goal behind waivers like the one HHS granted to South Carolina this week.
Julie Kruse, director of federal policy for the Family Equality Council, told The Daily Beast, “It really shows where the folks who are behind these efforts are trying to go, and it really shows that the harm is ultimately directed at children.”