The House Ways and Means Committee has issued a report accusing the Trump administration of “intentionally” harming LGBTQ Americans by granting a waiver that allows South Carolina adoption and foster care agencies to receive taxpayer dollars while turning away same-sex prospective parents.
The 34-page report, issued by the Democratic-led committee, outlines the situation surrounding the religious exemption waiver and its impact on LGBTQ prospective foster or adoptive parents, and calls on the U.S. Department of Health and Human Services to rescind the waiver.
“As subsequent Trump administration actions confirm, HHS is using the South Carolina waiver as a harmful precedent beyond child welfare, essentially using vulnerable foster youth as test cases for its discriminatory policies across all HHS services,” the report reads.
The waiver in question was issued to Miracle Hill Ministries by HHS in January 2019 in response to a request from South Carolina Gov. Henry McMaster (R), who claimed the waiver was needed to protect the religious liberty of agencies, like Miracle Hill, that have sincerely-held beliefs opposing homosexuality and same-sex marriage.
But the committee report claims that HHS inappropriately issued the waiver and ignored child welfare experts in order to explicitly discriminate against same-sex couples and LGBTQ prospective parents — not to ensure religious freedom as it has since claimed — and that HHS withheld documentation regarding its true motivation for issuing the waiver.
House Ways and Means Committee Chairman Richard Neal (D-Mass.) said the report shows that the HHS waiver is part of a “pattern of discrimination” on the part of the Trump administration aimed at limiting the rights and freedoms of LGBTQ Americans.
The American Civil Liberties Union, which opposes the waiver — due not only to its impact on LGBTQ Americans, but religious minorities — issued a statement denouncing the Trump administration’s efforts to allow discrimination under the guise of religion.
“The 440,000 children in our nation’s child welfare system need every qualified family that is willing to open up their homes to care for them. There’s no reason families who are LGBTQ, Catholic, Jewish, Muslim or otherwise don’t meet an agency’s religious test should be turned away from being foster parents,” Ian Thompson, a senior legislative representative with the ACLU, said in a statement.
“We appreciate the work of the Ways and Means Committee to shine a light on this unconstitutional discrimination enabled by the Trump administration and hope the Supreme Court will agree that there is no license to discriminate in our Constitution.”
The report comes just months before the U.S. Supreme Court is scheduled to hear oral arguments in the case of Fulton v. City of Philadelphia, a case in which Catholic Social Services is challenging a city of Philadelphia policy that prohibits foster care and adoption agencies that contract with the city from receiving taxpayer dollars if they discriminate against prospective parents based on characteristics protected under the city’s human rights law. Oral arguments are scheduled for Wednesday, Nov. 4.
If the high court decides in favor of CSS, the decision could have disastrous implications for the LGBTQ community, effectively enshrining a right to discriminate against LGBTQ individuals, or other groups of people, and justifying that discrimination by citing religious beliefs. In practice, that means LGBTQ people could be denied access to food banks, homeless shelters, disaster relief services, health care, and other services.
A ruling in favor of CSS would also mean that children in the foster care system will likely find it harder to find suitable parents because the pool of applicants will be significantly restricted, not only by excluding same-sex couples, but religious minorities or others who do not conform to an agency’s religious or moral views. These potential ramifications have been outlined in a report by the Movement Advancement Project.
Advocates, civil rights organizations, child experts, and others have collectively submitted 46 amicus briefs from approximately 1,000 signers arguing in favor of allowing the city to keep its policy forcing contractors to abide by its nondiscrimination laws in place.
One of those organizations submitting an amicus brief was Lambda Legal, which called on the Supreme Court not to undermine Philadelphia’s policy.
“Allowing foster care agencies to discriminate against same-sex couples seeking to foster sends a clear message to LGBTQ youth in care that there’s something unacceptable about who they are and that they aren’t equal under the law. It also exposes them to harm due to lack of family home placements likely to meet their needs,” M. Currey Cook, legal counsel and director of the Youth in Out-of-Home Care Project at Lambda Legal, said in a statement.
“Moreover, if the Court grants a broad religious exemption to agencies that contract with the government to perform these public services, LGBTQ youth will be left vulnerable to actual physical harm. Some LGBTQ children could be refused life-saving services, others denied supportive placements, and some even forced to undergo futile, damaging attempts to ‘change’ their identity,” Cook added. “Nationally and at every level, governments have a compelling interest and legal obligation not to cause further harm to these vulnerable young people by permitting discrimination of any kind in our child welfare systems.”
The child advocacy organization Children’s Rights expressed concern that the court might approve government-sanctioned discrimination by ruling in favor of Catholic Social Services.
“The lower courts correctly held that the City of Philadelphia’s anti-discrimination regulation applies to all taxpayer-funded child welfare agencies to ensure that the pool of foster parents and resource caregivers is as diverse and broad as the foster children they serve,” Christina Wilson Remlin, lead counsel at Children’s Rights, said in a statement. “I urge the Supreme Court to put children first and uphold Philadelphia’s nondiscrimination policy. The only litmus test for these caregivers should be love and safety.”
“We all cherish our constitutional freedom of religion, and that’s why our country has long balanced it with nondiscrimination protections that ensure all people are treated equally,” added Kasey Suffredini, the CEO and national campaign director of Freedom for All Americans. “The outcome of this case matters to all Americans, because discriminating in the provision of taxpayer-funded government services — as this foster care agency seeks to do — crosses an unprecedented line that could lead to dangerous consequences, particularly for the most vulnerable among us.”
“Religious belief is protected in our laws and Constitution and it is due respect,” Mary Bonuato, the Civil Rights Project Director at GLBTQ Legal Advocates and Defenders, said in a statement.
“However, the breadth of the exemption being sought by CSS in Fulton would take our nation backwards. It would allow individual religious disapproval to work its way back into lawmaking — a situation that is contrary to the promise of equal protection for all embedded in our Constitution, and one that the American people and two decades of Supreme Court precedent have already rejected.”
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