Faith-based adoption agencies protected, for now

The exiting Trump administration handed a parting gift on Thursday to faith-based adoption and foster care agencies: a final rule allowing them to receive federal funding while following Biblical beliefs on same-sex marriage.

The U.S. Department of Health and Human Services first proposed the change in November 2019 to an Obama-era regulation that providers complained forced them to choose between violating their religious beliefs or closing their doors. To explain the revision, the HHS cited the 2000 Religious Freedom Restoration Act (RFRA), which requires the government to show a compelling interest and use the least restrictive means when burdening religious liberty.

While the regulation continues to bar providers from discrimination, it no longer precludes them from operating consistent with their religious belief that marriage is between one man and one woman. It doesn’t apply to all faith-based agencies, but it covers those who contract with state or local governments to provide foster care or adoption services. States receive federal funding to provide placement services and use that money to pay contracting providers.

The new regulation would apply to cases like those of Catholic Charities West Michigan and New Hope Family Services, both represented by Alliance Defending Freedom. The agencies contend they faced closure due to the previous rule alongside state policies that targeted them for prioritizing placing children in homes with a mother and father. After a federal appeals court told it to reconsider a prior decision, a federal district court ruled in October 2020 that New York could not revoke New Hope’s authorization to place children for adoption while the lawsuit against the state proceeded. A federal court has not ruled on Catholic Charities’ June 2019 request to stop Michigan from forcing it out of the foster care program.

Another Michigan agency, St. Vincent Catholic Services, temporarily prevailed in its challenge to the state’s policy: A federal court in September 2020 found it would likely succeed on its religious liberty and free speech claims. The case is on hold until the Supreme Court decides Fulton v. City of Philadelphia. The justices in November heard Catholic Social Service’s challenge to the city’s attempt to exclude it from its foster care program.

A Biden administration could attempt to reverse course, though unwinding the revision could take time. A coalition is also asking the president-elect to support the so-called Do No Harm Act, a law proposed in the outgoing Congress that would limit RFRA’s application to religious practices. Such a move would “strip the heart out” of religious freedom law by confining it to worship and forcing faith-based providers to choose between complying with nondiscrimination provisions and closing, constitutional law scholar Douglas Laycock told Deseret News.

The Supreme Court could offer more enduring protection in its Fulton ruling by rooting the agencies’ rights in the First Amendment rather than RFRA.

Hopefully, the new administration has higher priorities than limiting the pool of agencies working to give children homes.

“Every child deserves a chance to be raised in a loving home,” ADF’s Zack Pruitt said. “HHS’s final rule to end this discrimination offers hope for children, more options for birth mothers, support for families, and increased flexibility for states seeking to alleviate real human need.”