Texas joins the battle against Biden administration rule

Faced with a precipitous increase of children in temporary emergency care, Texas took direct aim at a 2016 federal rule impeding faith-based foster care in a lawsuit filed against the Department of Health and Human Services.

Texas contends that enforcement of the rule against a state partnering with faith-based organizations contradicts explicit protection in another HHS rule, the “faith-based organizations and federal financial assistance” rule. The latter rule forbids HHS, any state or local government—when funding or selecting service providers—from discriminating “against an organization on the basis of the organization’s religious character, affiliation, or exercise.”

This is not just an academic exercise for Texas. It faces a shortage of residential options to care for almost 27,000 children in its child welfare system. Between August 2020 and August 2021, the monthly number of children without a state-licensed place to call home rose from 47 to almost 400, according to a September 2021 report by the Texas Department of Family and Protective Services.

Texas needs to expand its network of residential childcare options, and it wants to do so in part by expanding the number of faith-based providers.

That goal must overcome the 2016 federal rule, which threatens funding for states offering homes with foster care providers with Biblical values. As widely reported, during the last weeks of President Barack Obama’s administration, HHS amended its regulations so that all federal funding for foster care required states and childcare providers to accept caregivers for children without regard for sexual orientation and gender identity (SOGI). Since then, the so-called SOGI Rule has been a problem for faith-based foster care.

Texas law prevents state agencies from discriminating against childcare providers with religious beliefs. Texas also relies heavily on federal funding for its foster care system. Of $550 million per year it spends on residential childcare in the foster care system, almost 23 percent is federally funded. It also receives approximately $58 million per year to support casework services for children in foster care.

The conflict with the SOGI Rule in Texas extends to faith-based providers. The Archdiocese of Galveston-Houston, for instance, has not sponsored foster care services, despite its interest in doing so because of concern about federal enforcement of the rule.

This is not the first time Texas has tried to set aside the rule. It filed a lawsuit jointly with the Archdiocese of Galveston-Houston in 2019. When HHS under President Donald Trump gave Texas a statewide waiver from enforcement of the SOGI Rule to protect faith-based organizations, and it also assured the court that the rule would be revised, the case was dismissed. Now that the Biden administration has revoked those assurances from HHS, Texas has renewed its challenge of the rule.

Less well-known is how LGBT activists worked in concert with Biden’s HHS against any changes to the SOGI Rule.

On Jan. 12, 2021, at the tail end of the Trump administration, HHS published a revised rule. The rule, with an effective date of Feb. 11, 2021, was brief and to the point: no person would be excluded from or subjected to discrimination in HHS programs and services if prohibited by federal law, and HHS would follow all applicable Supreme Court decisions. In other words, the revised rule relied on laws already on the books.

In advance of President Joe Biden’s new administration, several LGBT activist groups in Alaska orchestrated a legal attack against the 2021 rule. Two weeks after President Biden took his oath of office, the 71-page lawsuit Facing Foster Care in Alaska v. HHS was filed in the U.S. District Court in Washington, D.C.

Only two days later, both parties filed a joint motion asking the court to postpone the effective date of the 2021 rule. Within five days of the motion, Judge Ketanji Brown Jackson, the presiding judge (and later President Biden’s appointee to the Supreme Court), granted the joint motion. By Feb. 9, 2021, less than a month after the 2021 rule was announced, and before it could take effect, it was “dead” for all intents and purposes. When HHS formally asked the court to vacate the 2021 rule and the motion was granted, the SOGI Rule, as adopted by the Obama administration, was the only rule left in place.

Meanwhile, the Supreme Court issued its landmark ruling in Fulton v. City of Philadelphia in June 2021. It held that the government cannot refuse to partner with religious-based foster care agencies or discriminate against them.

That ruling, however, did not stop Biden’s HHS from revoking all state waivers of the SOGI Rule in November 2021, including the one received by Texas. HHS announced it would not “condone the blanket use of religious exemptions against any person or blank checks to allow discrimination against any persons, importantly including LGBTQ+ persons in taxpayer-funded programs.” Instead, HHS would decide whether to grant religious waivers on a case-by-case basis.

The HHS policy puts obstacles in front of faith-based foster care. A case-by-case approach creates uncertainty for foster care providers, and HHS can take its time making such decisions. Biden’s HHS also never voluntarily concedes anything based on religious values unless courts intervene and require it, according to Matt Bowman, an attorney with Alliance Defending Freedom.

The Biden administration has thus far forced faith-based foster care providers to make difficult choices. The Archdiocese of Galveston-Houston chose not to sponsor foster care. The Tennessee Holston United Methodist Home for Children challenged the rule in court while continuing its ministry. Miracle Hill Ministries in South Carolina decided to waive its right to federal funding altogether, so it can operate undistracted by federal policy battles.

Texas’s recent lawsuit seeks to reestablish its right, as a state, to partner with all faith-based childcare providers and to regain certainty that faith-based foster care is a right that cannot be diminished by government action. As with Fulton v. City of Philadelphia, Texas may need to battle HHS all the way to the Supreme Court before that certainty can be reestablished.