Lesbians’ Challenge to South Carolina Foster Care Discrimination Advances

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.
Lambda Legal

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 first 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 clarification. When Miracle Hill confirmed that its application process asked about the applicants’ religious affiliations 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.

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 McMaster 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 state-licensed 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 benefit, 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 specific 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 financial 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 directing federal agencies to adopt policies giving maximum play to “religious freedom,” has attracted several legal challenges as it has been rolled out across the federal government.

The stigma of being turned down from a government-regulated and funded program because of one’s religion or sexual orientation was enough of an injury, according to Cain, to give these plaintiffs individual standing to challenge the policies under which they suffered discrimination and to seek injunctions against the federal and state officials who authorized the waivers.

Turning to the merits of the complaint, Cain found that the plaintiffs’ allegations, assumed to be true for purposes of deciding a motion to dismiss, included sufficient facts to bring both the Establishment Clause and the equal protection requirements — of the Fifth Amendment regarding the federal government and the 14th Amendment regarding the state government — into play.

The Supreme Court has long-standing precedents that government actions that aim to — or whose primary effect is to — advance religion can be challenged under the Establishment Clause. The government is supposed to be neutral in matters of religion. The plaintiffs argue that the federal and state governments have affirmatively collaborated to allow a private agency performing a public function funded by the government to give preference to those with its religious beliefs and exclude those with different or no religious beliefs.

Turning to the equal protection question, Cain decided, surprisingly, that the plaintiffs’ claim should be limited to the matter of sexual orientation. Here, Cain accepted the defendants’ argument that the waivers allow “any religiously-affiliated [child placement agency] to apply its own religious criteria to select prospective foster parents,” and so they are on their face neutral with respect to religion.

This is an odd conclusion. While the waiver policy on its face “treats all religions equally,” its application by the state here is to license an agency that does not treat “all religions equally” in running its program, but rather discriminates against all religions that it finds incompatible with Evangelical Christianity. And, the waiver itself treats non-religion unequally with religion. This seems to violate the concept of equal protection when applied to the issue of religion. But Cain did not see it that way, and granted the motion to dismiss the claim of an equal protection violation on the basis of religion.

Still, Cain was willing to let the equal protection claim proceed on the theory of sexual orientation discrimination. While pointing out that neither the Supreme Court nor the Fourth Circuit Court of Appeals, whose precedents are binding on the district court in South Carolina, has yet found that sexual orientation discrimination claims deserve heightened or strict scrutiny — placing a significant burden on the defendants to provide a non-discriminatory justification for the waiver policy — those courts have recognized that the government needs a legitimate policy reason for allowing an agency to carry out governmental functions in a discriminatory fashion regarding sexual orientation.

The court found that the plaintiffs had adequately shown they were turned down as a same-sex couples because of their sexual orientation. In fact, the defendants failed to assert in their motion to dismiss any substantive argument about why same-sex couples should be excluded from being foster parents. Instead, they asserted the absurd contention that the plaintiffs had not alleged facts that would support a sexual orientation discrimination claim. The court was not willing to accept such sophistry. Cain found that the sexual orientation discrimination claim survives the motion to dismiss.

Discovery is the next step in this lawsuit.

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