HHS changes rules to protect religious adoption agencies

shutterstock 245503777 2 Sign outside the Department of Health and Human Services building in downtown Washington, DC. | Mark Van Scyoc/Shutterstock

The Trump administration has announced a change to federal rules to preserve federal funding of faith-based adoption agencies, regardless of their views on same-sex marriage.

The Department of Health and Human Services (HHS) announced Nov. 1 that it would change its enforcement of previous regulations and propose a new rule, allowing faith-based adoption agencies to continue receiving federal funding while not having to match children with same-sex couples against their religious mission.

HHS said it would revise a 2016 rule that conditioned federal funding of child welfare agencies upon their matching children with same-sex couples.

The U.S. bishops' conference (USCCB) praised the change in a statement released on Friday.

"To restrict faith-based organizations' work by infringing on religious freedom – as the 2016 rule threatened to do - is unfair and serves no one, especially the children in need of these services," said a joint statement by Bishop Frank Dewane of Venice, Florida, chair of the USCCB Domestic Justice and Human Development committee, Bishop James Conley of Lincoln, chair of the USCCB Subcommittee for the Promotion and Defense of Marriage, and Bishop Robert McManus of Worcester, Massachusetts, chair of the USCCB Committee for Religious Liberty.

The previous regulation "threatened to shut out faith-based social service providers, namely adoption and foster care agencies that respect a child's right to a mother and a father," the bishops said.

The announcement comes in the middle of a "foster care crisis" in which faith-based adoption agencies will play a critical role in placing children with families, religious freedom advocates said.

"It is just as important today to continue fighting so that vulnerable children will have all hands on deck in the midst of a nationwide foster care crisis," said Lori Windham, senior counsel at the Becket Fund for Religious Liberty.

"Every child deserves a chance to be raised in a loving home," said Alliance Defending Freedom Senior Counsel Zack Pruitt said, noting that there are more than 400,000 children in the foster care system and 100,000 eligible for adoption. HHS's action "offers hope for children, more options for birth mothers, support for families, and increased flexibility for states seeking to alleviate real human need," he said.

However, the administration's proposed rule "would only fix part of the problem," Windham tweeted, as faith-based agencies also face hostility from state and local governments and thus "still need help from SCOTUS."

Becket represents several entities affected by the Obama administration regulation and similar state and local efforts to push child welfare agencies to place children with same-sex couples.

In a press release on Friday morning, HHS said it would stop enforcing certain regulatory provisions for administering grants, due to a problematic interpretation of them by the Obama administration.

The federal agency also issued a proposed rule revising part of a 2016 Obama-era regulation, to better protect faith-based adoption agencies.

The rule, HHS said, would ensure respect for civil rights while protecting religious freedom and "eliminating regulatory burden" on "the free exercise of religion"; it would do so by requiring grant recipients to comply with existing anti-discrimination laws passed and religious freedom laws that have been passed by Congress, while also requiring HHS to comply with relevant Supreme Court decisions.

Faith-based adoption agencies have had to contend with efforts at the federal, state, and local levels that conditioned public funding on the agencies placing children with same-sex couples in violation of their religious mission.

In Michigan, Catholic Charities West Michigan-represented by ADF-brought a federal lawsuit against the state for withholding funding from faith-based adoption agencies over their stances on marriage. A federal court recently blocked the Obama-era regulation from going into effect in a case involving St. Vincent Catholic Charities and a family looking to adopt, represented by Becket.

"Both the federal government and a federal court have now recognized that discrimination against faith-based agencies seeking to serve those most in need should not be tolerated. We hope that state and local governments will follow suit," Windham said.

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There are several federal laws which are relevant to nondiscrimination in the adoption and foster care system.

These include Title VI of the Civil Rights Act, which forbids discrimination on the basis of race, color, or national origin in programs of child welfare agencies and state courts. Title IX of the Education Amendments of 1972 forbids sex discrimination in federally-funded education programs; other laws prohibit discrimination for age and disability.

The Obama administration interpreted existing law to forbid discrimination in the child welfare system not only on basis of sex, but sexual orientation. Thus, it began taking action against adoption agencies that did not place children with same-sex couples, on the grounds that they were discriminating against an individual's sexual orientation.

Rep. Robert Aderholt (R-Ala.) introduced an amendment in a 2018 funding bill to withhold some HHS funding of states that would not allow faith-based organizations to carry out their religious mission in child welfare. The amendment was removed from the legislation before a final House vote.

Adoption agencies have also been facing adverse action from states which have anti-discrimination laws.

In Massachusetts, Catholic Charities of the Boston Archdiocese stopped its adoption services in 2006 after the state legalized same-sex marriage. Catholic Charities in California and Illinois also stopped their adoption services in 2006 and 2011, respectively.

In Illinois, the bishops had said that the state "made it financially impossible for our agencies to continue to provide these services," after the state legalized same-sex marriage and required adoption agencies to pair children with same-sex couples.

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In 2018, the city of Philadelphia stopped placing adoptive children with Catholic Social Services, only days after calling for 300 new families to adopt foster children.

The city faces a lawsuit by several foster mothers for its decision to stop working with Catholic Social Services, and on Nov. 15, the Supreme Court will decide whether or not to grant review in Fulton v. Philadelphia.

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