FAMILIES
South Carolina Foster Care Bias Challenge Advances
Federal court dismisses US, state effort to dismiss suit over Trump religious waiver
Eden Rogers and Brandy Welch can now proceed with their lawsuit against the federal government and the State of South Carolina regarding waivers that
allowed a foster care agency to discriminate against them.
BY ARTHUR S. LEONARD
Lambda Legal’s lawsuit
on behalf of Eden Rogers
and Brandy Welch,
a married lesbian couple
seeking to be foster parents but denied
services by Miracle Hill Ministries,
a state-licensed child placement
agency that is the largest in
South Carolina, has survived its
fi rst hurdle, beating back a motion
to dismiss the lawsuit by state and
federal government defendants.
US District Judge Timothy M.
Cain, an Obama appointee, ruled
on May 8 that the women have
standing to challenge the federal
government’s grant of a “waiver”
to South Carolina to allow foster
care agencies to discriminate on
the basis of religion, and also to
challenge the state’s policy, applying
that waiver, allowing licensed
agencies to discriminate based on
religion and, consequently, sexual
orientation.
The judge ruled that the plaintiffs
have a potentially valid claim
under the First Amendment’s Establishment
Clause and the 14th
Amendment’s Equal Protection
Clause.
According to the complaint, Rogers
and Welch married in South
Carolina in 2015 and have two
children. Wanting to be foster parents
for another child, they applied
to Miracle Hill Ministries, which
turned them down, stating that
based on its Evangelical Christian
beliefs, the agency could not provide
services to same-sex couples.
Prior to 2018, South Carolina’s
published policies for licensing
child placement agencies provided
that such agencies could not
discriminate based on religion or
sexual orientation. Miracle Hill’s
policy, made obvious on its website,
is to provide services only to
Evangelical Christians. When its
annual license came up for renewal,
the state’s Department of Social
Services noted that Miracle Hill’s
policy violated the department’s
anti-discrimination policy and
asked Miracle Hill for clarifi cation.
When Miracle Hill confi rmed that
its application process asked about
the applicants’ religious affi liations
and beliefs so it could screen out
those who would not be provided
service, the department concluded
the policy violated both federal and
state laws.
LAMBDA LEGAL
Miracle Hill was issued only a
temporary six-month license and
given 30 days to address the Department
of Social Services’ concerns
with a written plan of nondiscrimination
compliance. There
is no indication that Miracle Hill
ever submitted that plan.
Apparently aware that the
Trump administration was open
to granting “waivers” to child
placement agencies receiving federal
funding from complying with
nondiscrimination requirements,
Republican Governor Henry Mc-
Master went into action on Miracle
Hill’s behalf. The governor applied
to the US Department of Health
and Human Services for a waiver,
which HHS promptly provided.
With that waiver in hand, McMaster
issued an executive order directing
his Department of Social
Services to allow child placement
agencies to discriminate based on
their religious beliefs.
In their lawsuit, Rogers and
Welch argue that allowing a statelicensed
and funded child placement
agency to discriminate based
on religious belief — and so therefore
sexual orientation, as well —
violates the First Amendment’s
Establishment Clause, using taxpayer
money and government policy
to advance religion and exclude
members of the public from receiving
a benefi t, and also denies them
equal protection of the law. They
are seeking a court order requiring
the state and federal governments
to refrain from authorizing such
discrimination against same-sex
couples by child placement agencies.
The defendants are the US Department
of Health and Human
Services, HHS Secretary Alex
Azar, and the specifi c division
within HHS that administers this
program, together with its director;
McMaster and Michael Leach,
director of the South Carolina Department
of Social Services.
In their motion to dismiss the
case, the defendants argue that
they can’t be sued because they
didn’t turn down Rogers and Welch.
Judge Cain characterized this as
an attempt to “pass the buck” to
Miracle Hill, and easily rejected it,
pointing out that granting waivers
here made it possible for Miracle
Hill to continue as a licensed
agency and funding recipient while
keeping its discriminatory policy.
The judge also rejected the argument
that Rogers and Welch had
not sustained any personal injury
from the state or federal government.
The state delegates its function
of running the foster care
system to private agencies such as
Miracle Hill, but that does not insulate
the state from responsibility
for determining that it is performed
consistent with the state’s constitutional
and statutory obligations
In addition, the federal program
under which South Carolina gets
fi nancial assistance to administer
foster care has a statutory religious
nondiscrimination requirement,
leaving a big question whether the
Trump administration can override
that requirement by granting
waivers. The waiver policy, part
of a broader initiative announced
by President Donald Trump in an
executive order early in his term
➤ FOSTER CARE BIAS, continued on p.23
May 21 - June 05, 2 22 020 | GayCityNews.com
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