Civil rights and separation of church and state groups are thrilled, but conservative evangelicals are dismayed that the Biden administration announced Nov. 18 the reversal of a Trump-era policy that allowed discrimination against foster parents because of their sexual orientation.
Under the Trump administration, the U.S Department of Health and Human Services issued blanket waivers to three states — South Carolina, Texas and Michigan — and to certain child welfare agencies in those states saying they did not have to comply with existing federal policies against discrimination while receiving federal funding. Typically, those states and agencies did not want to work with gay persons or same-sex couples as foster parents.
Typically, those states and agencies did not want to work with gay persons or same-sex couples as foster parents.
The larger question of whether child welfare agencies can disallow participation by the LGBTQ community has been the cause of federal lawsuits. In June, the U.S. Supreme Court handed down a narrow ruling about a case in Philadelphia that allowed Catholic Social Services to discriminate in such a way, but only because there are other federally supported agencies in Philadelphia that do not discriminate. A separate but similar lawsuit was filed in Tennessee in October by a lesbian who was denied service as a foster parent to an unaccompanied minor refugee.
The Department of Health and Human Services, now led by Biden appointees, declared that the department under Trump’s leadership had granted waivers for discrimination that were “inappropriate and unnecessary” and noted that the Trump administration did not enforce existing civil rights protections.
Waivers granted during the Trump administration were “inconsistent with the department’s critical goal of combating discrimination based on religion, sexual orientation and gender identity,” a news release said.
The return to the pre-Trump policy doesn’t mean all discrimination will be banned. “With today’s actions, the department is returning to its longstanding practice of a case-by-case evaluation of requests for religious exemptions, waivers and modifications of program requirements across its components, which is demanded by the Religious Freedom and Restoration Act,” the release explained.
“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,” said HHS Secretary Xavier Becerra. “Our action ensures we are best prepared to protect every American’s right to be free of discrimination.”
Americans United for Separation of Church and State applauded the change. AU currently represents Aimee Maddonna, a Catholic woman rejected by an evangelical Christian foster care agency in South Carolina because of her religion.
In response, Rachel Laser, president and CEO of Americans United for Separation of Church and State, said: “Today the Biden administration took important strides to restore religious freedom, which was repeatedly undermined by the Trump administration. Our nation promises everyone the freedom to believe as they want, but our laws cannot allow anyone to use their religious beliefs to harm others.
“Rescinding these damaging Trump waivers is a critical first step. The Department of Health and Human Services should never allow taxpayer-funded foster care agencies to apply a religious litmus test to discriminate against Catholic, Jewish, LGBTQ and other families who want to help children who are in foster care. This includes people like our client Aimee Maddonna – a Catholic mother of three who was rejected by a federally funded foster care agency in South Carolina because she’s the ‘wrong’ religion. 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.”
Maggie Siddiqi, senior director of Religion and Faith at the Center for American Progress, also praised the action: “Congress enacted the Religious Freedom Restoration Act to protect the free exercise of religion, particularly for religious minorities. It was never intended to allow discriminatory practices that undermine religious freedom.
“The prior administration’s waivers misused RFRA in a manner the House Ways and Means Committee characterized as ‘improper and unprecedented,’ allowing prospective parents to be turned away from adoption agencies simply because of their religious beliefs or any other protected characteristics. In South Carolina, for example, the waiver enabled a Protestant foster care agency to turn away prospective foster parents who were Catholic and Jewish. Far from protecting religious liberty, these waivers subverted this fundamental freedom.
“Today’s actions by the Biden administration will ensure no child is denied a loving foster home simply because of who their prospective parents are, who they love, or what they believe,” Siddiqi said.
On the other hand, political and religious conservatives criticized Becerra in particular because he previously served as California attorney general and in that capacity sued the Little Sisters of the Poor in their fight against the contraception mandate within Obamacare.
Also at issue here is a fundamental disagreement about the meaning of civil rights. The Trump administration, following the lead of many conservative evangelicals, focused on maintaining the rights of evangelical Christians over the rights of others. This is the heart of debate in American religion today about the meaning of religious liberty, whether policy should focus on the “free exercise of religion” clause of the First Amendment or the “no establishment of religion” clause.
At issue here is a fundamental disagreement about the meaning of civil rights.
Roger Severino, who led the Office of Civil Rights in the Trump administration, told Fox News he sees danger in the Biden administration’s reversal of Trump’s policies.
“HHS centralized authority over religious freedom claims because the laws weren’t being enforced and because that’s how we enforce every other civil right,” he said. “Without dedicated staff responsible for investigating religious freedom complaints, HHS will return to trampling people’s rights as before — just ask the Little Sisters of the Poor.”
In a tweet the day before the announcement — and based on a leaked version of the HHS memo — Severino warned that HHS “plans to effectively end religious freedom enforcement at HHS.” He also said: “The Biden admin declared open season on people of faith some time ago, this would make it official.”