On Wednesday, January 23, the Department of Health and Human Services issued a long-delayed decision that grants a child welfare agency in the state of South Carolina a waiver from anti-discrimination requirements under Title IV-E foster care and adoption assistance. The action permits one child welfare agency, Miracle Hill, to continue restricting their recruitment practices to parents that shared their specific religious beliefs—although the letter states, “The exception applies…any other making use of in the SC Foster Care Program that uses similar religious criteria…”.

Under regulations issued under the Obama Administration, state child welfare agencies were instructed that discrimination on the basis of age, disability, sex, race, color, national origin, religion, gender identity or sexual orientation in the recruitment of foster and adoptive parents or in the placement of children and youth is illegal.

The issue gained public attention early last year when news reports in the state of South Carolina reported on an incident about a couple who had moved from Florida (where they had been foster parents for ten years) to South Carolina and they wanted to mentor children in foster care. According to the Greenville News:,

“After training and completing background checks, [Beth]Lesser said protestant Christians were given an application and told that they could work with the staff at Miracle Hill…Lesser, who is Jewish, said she wasn’t given the opportunity to work with Miracle Hill, which has a significantly higher pool of children. In the end, her options for mentoring were limited, she said. The reason? She was told by Miracle Hill staff that she wasn’t selected because she didn’t share the organization’s Christian faith.”

Originally the state child welfare agency informed the provider they were in violation of federal and state law. In reaction the Governor interceded and applied for a waiver of the anti-discrimination requirements and sought an exemption under another federal law known as the Religious Freedom Restoration Act or RFRA.

RFRA was enacted in 1993 with bipartisan support to correct existing law after some controversies around restrictions on certain religious practices that might violate the law otherwise. The specific cases that caused concern revolved around the use of peyote through some Native American religious practices. The statute has been broadly interpreted by the Trump Administration to allow various agencies and entities to reject some federal prohibitions as being in violation of a person or entity’s religious beliefs and practices.

The letter, signed by Principle Deputy Assistant Secretary Steven Wagner, argues that the Obama regulation goes beyond the anti-discrimination restrictions found in subparagraph (18) of the Title IV-E state plan requirements. The letter indicates that the same exemption may be available to other providers. It also instructs Miracle Hill to refer prospective parents they reject to the state or other agencies but also allows a way out from that requirement as long as the provider “does not object on religious grounds to making such referrals.”

CWLA President & CEO Chris James-Brown issued a statement critical of the waiver highlighting the fact that the letter and decision made little mention of children and the impact on children,

“We recognize and support the critical and important role that religious-affiliated agencies have played and continue to play in our nation’s human services programs. The decision by HHS, however, would offer broad authority to potentially violate the central principle of the nation’s child welfare system by not placing the best interest of children and youth first.”

According to news reports, Miracle Hill is the largest provider of foster families for “foster children who do not have special needs.” According to the Governor’s office they recruit 15 percent of foster families in the state. According to the newspaper report there are 11 church-affiliated or Christian-based child placement agencies in South Carolina, but Miracle Hill is the only one that has religious requirements for foster parents.

As noted in the CWLA statement:

“The decision by HHS mainly focuses on the role and the rights of agencies and focuses its language on the recruitment of foster parents. By doing so, it ignores the impact on the children and youth in foster care, particularly those young people who identify as LGBT. The broad waiver will also impact on the selection and recruitment of adoptive and kin families.”

A number of congressional offices issued statements critical of the decision including House Education and Labor Chair Congressman Bobby Scot (D-VA), Ways and Means Committee Chair Congressman Richard Neil (D-MA). Next steps are unclear, but it is certain that Congressman John Lewis (D-GA) will be reintroducing his legislation, “Every Child Deserves a Family Act” in a House friendlier to such legislative action. Some legal actions may also take place through some coalitions.