On February 14, People For the American Way and PFAW’s African American Ministers In Action urged the Department of Health and Human Services to reconsider its decision to exempt federally funded foster care and adoption agencies in South Carolina, which have a duty to act in the best interests of children, from federal nondiscrimination protections. On July 22, PFAW and AAMIA once again joined allied organizations to send a clear message to HHS: You will harm children and families and violate our nation’s fundamental protections for religious freedom. This time, the threat is even bigger, with reports suggesting that the administration wants to enforce a nationwide exemption. You can download our letter here.

Dear Secretary Azar:

We, the undersigned members and allies of the Coalition Against Religious Discrimination (CARD), write to express our opposition to any rules the Department of Health and Human Services (HHS) may propose that would exempt federally funded foster care and adoption agencies across the country from the religious nondiscrimination protections provided under 45 CFR § 75.300(c).¹ Paradoxically, the exemption would use the concept of religious freedom as a justification for taxpayer-funded religious discrimination.

CARD is a broad and diverse group of organizations formed in the 1990s to monitor legislative and policy changes impacting government partnerships with religious and other nonprofit organizations and, in particular, to oppose government-funded religious discrimination. Our coalition members appreciate the important role religiously affiliated and other community-based institutions historically have played in addressing many of our nation’s most pressing social needs, as a complement to government-operated programs; indeed, many members of CARD are directly involved in this work. We also recognize that the separation of church and state is the linchpin of religious freedom. In our view, effective government collaboration with faith-based groups does not require the sanctioning of federally funded religious discrimination.

In January, HHS used a gross misinterpretation of the Religious Freedom Restoration Act (RFRA) to justify exempting South Carolina foster care agencies from 45 CFR § 75.300(c). HHS should not use the same flawed analysis to justify a nationwide exemption. RFRA does not require the government to allow taxpayer-funded child placement agencies to turn away potential parents and volunteers who cannot meet their religious test. For example, Miracle Hill Ministries, the agency whose policy led to HHS granting a statewide exemption in South Carolina, turned down prospective volunteers and parents who are Catholic, Jewish, and Unitarian Universalist because they did not meet its religious requirements. This discriminatory policy harms children and parents and threatens core civil rights and religious freedom protections. The government should never fund religious discrimination, especially when it is vulnerable children who will pay the price.

An Exemption Would Harm Children and Parents

Children in foster care have been entrusted to the state for care, stability, and safety. Adoption and foster care agencies that accept government funds to serve these children have a duty to act in the best interests of each child. Using a religious litmus test to reject qualified and caring parents who want to foster and adopt, however, makes it even more difficult for these children to find a loving home. Indeed, a religious test reduces the number of qualified foster and adoptive parents who are able to open their homes to these children. We cannot allow the religious beliefs of a government-funded agency to override the best interest of our most vulnerable children.

In addition, an exemption would clearly harm potential parents who are rejected from the government program. No qualified parent should be denied the opportunity to provide a loving home to children in need because they are the “wrong” religion.

An Exemption Would Harm Religious Freedom

Some of us were members of the Coalition for the Free Exercise of Religion, which led the effort to persuade Congress to enact RFRA; yet, we all agree that using RFRA to create a blanket exemption to nondiscrimination protections is an inappropriate use of the law. RFRA was meant to be a shield to protect religious freedom, not a sword to sanction discrimination against others. Regulations based on RFRA would turn the original promise of the law on its head—they would use RFRA to disqualify individuals from participating in government programs solely because of their religion. Under this harmful policy, HHS would ignore the state’s compelling interest in acting in the best interest of children in its care and in not discriminating against potential parents and volunteers because of their religion.

Religious freedom, which is a core American value, requires that those who perform government services must serve everyone, regardless of religion. Ensuring that taxpayer-funded child placement agencies abide by nondiscrimination laws is not hostile to religion—turning away people seeking to engage in government-funded services because they fail a religious test is.

* * *

Because an exemption will harm children and families and violate our nation’s fundamental protections for religious freedom, we urge you to end consideration of any proposed regulations.