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.
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.