FALLING DOWN THE SLIPPERY SLOPE
Trump Administration Lets Foster Agency Turn Away Catholics and Jews
In their zeal to stop gay people from adopting kids in need, conservatives have empowered state-funded agencies to turn away anyone they deem unsuitable.
Aimee Maddonna is the kind of foster parent that child welfare agencies dream of: a married mom of three children, two of them with special needs, and hoping to foster kids who also have special needs. No surprise that when she visited the largest child-welfare agency in her hometown of Greenville, South Carolina, she passed all of the screening tests with flying colors.
Until she told them she was Catholic. That’s when her application was summarily rejected.
That’s because the agency in question, the state-funded, evangelical-run Miracle Hill Ministries only places children with “born again” Christian parents. In 2018, South Carolina’s Republican governor, Henry McMaster, issued an executive order specifically allowing this discrimination and asked for a federal waiver to allow Miracle Hill to receive federal taxpayer dollars disbursed by the state and turn away not just LGBT people, unmarried people, and anyone else they deemed religiously unfit, but non-evangelical Christians and Jews too. (At least two Jewish couples have also been denied by Miracle Hill.)
In January 2019, the Trump administration’s Department of Health and Human Services granted that waiver.
That’s right, in Donald Trump’s America, state- and federally funded adoption agencies and other child welfare agencies (CWAs) can openly violate anti-discrimination laws and openly flout the “best interests of the child” standard that governs American family law, and can legally refuse to place children with anyone they religiously disapprove of.
Unconstitutional? Maybe. Un-American? Definitely.
Being turned away “wasn’t something that had even crossed my mind,” Maddonna said on a recent press call sponsored by the American Civil Liberties Union. “I never thought, as a Catholic, that this would be an issue.”
Maddonna is now in court, part of a lawsuit brought by Americans United for Separation of Church and State. It’s one of several legal actions pending against a national assault against LGBT adoption—10 states specifically allow state-funded CWAs to turn gay people away because of their sexual orientation—that is so overbroad that it has now caught straight Catholics and Jews in its dragnet.
“This was once considered a fringe policy,” said Leslie Cooper, deputy director of the ACLU’s LGBT & HIV Project. “It’s now reached crisis levels.”
The ACLU just settled its own lawsuit against the State of Michigan over a policy similar to South Carolina’s. As part of the settlement, Michigan withdrew its religious exemption and agreed to enforce anti-discrimination laws against all CWAs.
To be sure, religious organizations are legally allowed to discriminate. If a Catholic diocese doesn’t want to hire a rabbi to celebrate Mass, that is perfectly legal. It’s legal if they want to turn gays away at the door too.
But when an organization takes federal money, that money comes with certain conditions, like not discriminating against Jews or gay people, and, in the case of adoption and foster care, making decisions based on the best interests of the child, not theology.
In essence, state-funded CWAs are contractors of the state, which has outsourced adoption and foster care decisions to religiously-affiliated organizations. They are what lawyers call “state actors,” and must now act within constitutional as well as statutory bounds. In many states, these religiously-affiliated CWAs are the largest providers of these services. For example, Miracle Hill is the largest taxpayer-funded foster-care agency in South Carolina.
But there have long been debates about whether such state-funded agencies have to obey the same laws as everyone else.
In 2006, Catholic Charities withdrew from providing adoption and foster programs in Massachusetts rather than place children with same-sex couples (same-sex marriage became legal in Massachusetts in 2004). In 2011, Illinois canceled its contract with the agency rather than litigate the permissibility of discrimination. And more recently, Catholic Charities of Buffalo, New York, ended its foster and adoption programs rather than comply with New York state law.
That’s why states like South Carolina (as well as Virginia, Alabama, Mississippi, Texas, Oklahoma, Kansas, North and South Dakota) have passed laws specifically exempting religiously affiliated CWAs from anti-discrimination laws.
What’s amazing about the Miracle Hill case is that turning away Catholics and Jews was, just a few years ago, dismissed as a “scare tactic” that progressives (including me) invoked to warn against the dangers of runaway religious exemptions. Allowing discrimination against gays is a slippery slope, we argued; others will be next.
Well, we’ve now slipped down the slope.
There’s still farther to slide, however. The state of Texas has asked HHS for a nationwide religious exemption that would enable all CWAs in the country to retain their federal funding while turning away gay people and other undesirables.
That request is still pending at HHS, but given the stated mission of the department’s “religious freedom” office, headed by Roger Severino, an acolyte of far-right fixer Leonard Leo who has promoted far-reaching religious exemptions for many years, it could very well succeed.
Meanwhile, Catholic Social Services has sued the city of Philadelphia, arguing that not being allowed to discriminate on the state’s tab violates the First Amendment. If, as expected, that case (Fulton v. City of Philadelphia) goes to the Supreme Court, all states could be required to fund discriminatory CWAs.
None of this needs to happen.
If religiously affiliated CWAs do not want to place a child with a same-sex, Catholic, unmarried, or in any way unvirtuous couple, then all they have to do is stop taking state money.
Now, conservatives have long warned that turning off the funding spigot to discriminatory CWAs would create a crisis. Who will care for the children?
Well, we already know the answer to that. In Massachusetts, Illinois, and elsewhere, non-discriminatory CWAs have done the job formerly done by discriminatory ones. There has been no shortage of adoption agencies.
On the contrary, the only shortage happening right now is of qualified parents like Aimee Maddonna. There are 123,000 children waiting to be adopted or fostered right now. And every CWA that excludes parents like her (or me) from the adoption pool makes that problem worse.
So, if providing safe homes for children in need is the goal, then we should be supporting agencies who do that—not excluding qualified parents based on criteria not relevant to a child’s well-being.
That may or may not matter if Maddonna v. HHS goes to the Supreme Court.
There, the question will be how to balance Aimee Maddonna’s 14th Amendment right to be protected equally by the laws (and her statutory right to not be discriminated against on the basis of religion) against Miracle Hill’s First Amendment rights to freely exercise its religion.
David Barkey, the national religious freedom counsel at the Anti-Defamation League, pointed out that with Justices Kavanaugh and Gorsuch on the court, “it’s anything goes.” Progressives have argued that “courts should not allow religious exemptions that cause third-party harms,” Barkey told The Daily Beast. “But the court didn’t buy it in Hobby Lobby and is unlikely to buy it now.”
Not only that, but the fact that Maddonna is a straight, married mom may actually make Miracle Hill look better. After all, they’re not discriminating against gays; they turned away a straight Catholic too.
And, Barkey said, Gov. McMaster had to have known it. “If you look at Miracle Hill’s policy, it’s clear that they not only would be rejecting LGBTQ people but would be rejecting any person who was not of their particular branch of Christianity.”
So it’s come to this. In their zeal to stop gay people from adopting kids in need, conservatives have empowered state-funded agencies to turn away anyone they deem unsuitable, with no reference to child welfare whatsoever.