Lankford, Tim Scott Push Effort to Protect Faith-Based Child Welfare Providers

WASHINGTON, DC – Senators James Lankford (R-OK) and Tim Scott (R-SC) along with Representative Ralph Norman (R-SC) sent a bicameral letter to Health and Human Services (HHS) Secretary Xavier Becerra, condemning HHS’s recent reversal of protections for faith-based adoption and foster care agencies. 

“We find it disturbing that one day before it released its 2021 AFCARS report, the Department of Health and Human Services (HHS)—with your express approval— announced the rescission of waivers that were previously granted to faith-based adoption and foster care agencies in Michigan, Texas, and South Carolina,” the members of Congress wrote in their letter. “As you know, rescinding the waivers puts providers in these states in the untenable position of choosing between serving children under the Title IV-E foster care program or operating in accordance with the tenets of their faith – the same faith that drives them to serve children in the first place. HHS should be welcoming child welfare providers, not excluding them. Children are too important to be pawns in political games.”

BACKGROUND

In June, the Supreme Court unanimously held in Fulton v. City of Philadelphia that Philadelphia was wrong to require Catholic Social Services to shed their faith in order to serve children and families and reaffirmed that no one should be discriminated against or compelled by the government to violate their sincerely held religious beliefs. In 2019 Lankford signed on to a brief asking the Supreme Court to take the case. In March, Lankford introduced the Child Welfare Provider Inclusion Act, which would protect faith-based child welfare providers, like Catholic Social Services, from being discriminated against for acting in accordance with their deeply held religious beliefs.

On November 17, Lankford exposed a leaked memo from the Department of Health and Human Services that sought to repeal certain protections for religious freedoms and directly calls out Members who have been outspoken of HHS’ mishandling of conscience and religious freedom protections. On November 18, HHS announced it was rescinding waivers previously issued to faith-based adoption and foster care agencies in South Carolina, Michigan, and Texas that allowed them to qualify for HHS grants while operating in accordance with their deeply-held religious beliefs. Additionally, HHS announced it was moving to strip the Office for Civil Rights of its authority to enforce the Religious Freedom Restoration Act (RFRA) and the religion clauses of the First Amendment.

Cosigners on the letter are Senators John Cornyn (R-TX), Thom Tillis (R-NC), Richard Burr (R-NC), Marsha Blackburn (R-TN), Cindy Hyde-Smith (R-MS), Mike Braun (R-IN), Ted Cruz (R-TX), Bill Hagerty (R-TN), Roger Wicker (R-MS), Jim Inhofe (R-OK), Rick Scott (R-FL), Tom Cotton (R-AR), Marco Rubio (R-FL), Roger Marshall (R-KS), Steve Daines (R-MT), John Boozman (R-AR),  Josh Hawley (R-MO), John Kennedy (R-LA), Lindsey Graham (R-SC), Bill Cassidy (R-LA), John Thune (R-SD), Kevin Cramer (R-ND), Jim Risch (R-ID), Jerry Moran (R-KS), John Hoeven (R-ND), Chuck Grassley (R-IA), Joni Ernst (R-IA), Mike Lee (R-UT), Mitt Romney (R-UT), and Todd Young (R-IN).

Read the full letter here.

Secretary Becerra:

Faith-based child welfare providers perform vital services for hundreds of thousands of foster children nationwide and are often the best at finding forever homes for children in need. Alongside secular child welfare providers, faith-based organizations provide support, resources, and care to the nearly half a million kids who have found themselves in foster care through no fault of their own.

The freedom to work with faith-based agencies is vital to many foster families. Many studies have shown that faith is often a key motivator in a family’s decision to foster children. Families recruited through church or religious organizations on average foster more than two and a half years longer than other foster parents. One study found that 82 percent of families cited faith or church support as a factor that facilitated successful fostering. Another study revealed that 36 percent of families recruited by one religious organization would not have become foster or adoptive parents were it not for that organization’s efforts. 

Furthermore, states that have pushed faith-based providers out of the picture have seen a measured decrease in their ability to respond to the foster care crisis. For example, in the eight years after Illinois passed a law ending its partnerships with faith-based agencies, the state lost over five thousand foster homes. Massachusetts lost 2,000 foster families between 2014 and 2019.

These are loving homes that we cannot afford to lose in the middle of a national foster care crisis. According to the Administration for Children & Families’ annual Adoption and Foster Care Analysis and Reporting System (AFCARS) report, 407,493 children are in foster care, 117,470 of whom are waiting to be adopted. With these staggering numbers in mind, our primary goal should be safe, loving, and permanent placements for all children.

We find it disturbing that one day before it released its 2021 AFCARS report, the Department of Health and Human Services (HHS)—with your express approval— announced the rescission of waivers that were previously granted to faith-based adoption and foster care agencies in Michigan, Texas, and South Carolina. As you know, rescinding the waivers puts providers in these states in the untenable position of choosing between serving children under the Title IV-E foster care program or operating in accordance with the tenets of their faith – the same faith that drives them to serve children in the first place. HHS should be welcoming child welfare providers, not excluding them. Children are too important to be pawns in political games.

As you know, the waivers acknowledged that prospective foster parents of all faiths, or no faith at all, have options for agencies that will work with their particular circumstances. As a result, your precipitous actions create no winners, only losers in the form of children, parents, religious freedom, and the rule of law.

On April 10, 2018, a dozen United States Senators sent a letter to then-Secretary Alex Azar concerning the Obama administration’s grants rule, 45 C.F.R. § 75.300, which wrongfully targeted a number of faith-based child welfare providers, forcing them to forgo their sincerely held religious beliefs to qualify for grants. Miracle Hill Ministries, South Carolina’s oldest and largest provider of foster families for foster children, for example, would have lost access to Title IV-E funding under the Obama rule. The Trump administration rightly recognized that the Religious Freedom Restoration Act (RFRA) entitled certain faith-based agencies protection from exclusion from the program because of their faith, including through application of 45 C.F.R. § 75.102(b).

Earlier this year, a unanimous Supreme Court in Fulton v. City of Philadelphia validated the principle that religious adoption agencies have a right to be free from discriminatory exclusion from adoption and foster care programs because of their beliefs. The Supreme Court found that “the refusal of Philadelphia to contract with Catholic Social Services for the provision of foster care services unless it agrees to certify same-sex couples as foster parents cannot survive strict scrutiny, and violates the First Amendment.” However, HHS and the Biden administration appear to be ignoring the Court’s clear direction that religious foster care agencies cannot be shut down because of their religious beliefs.

Philadelphia’s attempt to eradicate faith-based foster care was not only unconstitutional, but also detrimental to the goal of finding enough loving homes to meet the city’s great need. The Court noted that “[i]f anything, including CSS in the program seems likely to increase, not reduce, the number of available foster parents.”

What was clear to the Supreme Court—and what is borne out in the empirical data—does not appear to be clear to you. In the very moment when your agency should be taking action to expand opportunities for children and families within the foster care system, you are instead taking actions that will reduce options for the 407,493 children in foster care.

Worse still, you have personally stripped the Office for Civil Rights (OCR) of existing authority to receive, handle, investigate, and oversee resolution of complaints under RFRA and the religion clauses of the First Amendment. 86 F.R. 67067 (Nov. 24, 2021). You were questioned specifically and extensively in Congressional hearings on whether you were planning to limit or shut down conscience and religious freedom enforcement at the Office for Civil Rights and in response you said “we, under the Office of Civil Rights will be protecting those rights” and “we will continue to provide protections for the civil constitutional rights of all Americans including those that involve religion and so nothing there changes.” With these and other anti-religious freedom actions you have taken, you have betrayed your promise.

The November 18 announcements made by HHS’s Administration for Children and Families (ACF) and OCR regarding the rescission of waivers, and your Federal Register notice of November 24, raise a number of questions. We request your full and complete responses to the requests and questions below no later than XXX. Please provide a response below each question instead of a narrative response.

1. Identify all outside persons or groups that communicated to HHS advocating for revocation of the waivers.
2. Identify all outside persons or groups that communicated to HHS advocating for the revocation of the RFRA and First Amendment delegations of authority to OCR.
3. Identify who originated the idea to revoke the waivers.
4. Identify who originated the idea to revoke the delegations of authority.
5. Produce all documents, memos, and communications discussing or seeking approval of the revocations of the waivers.
6. Produce all documents, memos, and communications discussing or seeking approval of the revocations of the delegations of authority.
7. Produce all documents approving the revocation of the waivers.
8. Produce all documents approving the revocation of the delegations of authority.
9. Produce all communications sent to outside individuals, groups, entities, or parties, including non-profits, advocacy organizations, states and state agencies, concerning the revocations of the waivers before and after they were approved.
10. Produce all communications sent to outside individuals, groups, entities, or parties, including non-profits, advocacy organizations, states and state agencies, concerning the revocations of the delegations of authority before and after they were approved.
11. Were any career professionals in the Conscience and Religious Freedom Division consulted (not merely informed) before the revocation of the waivers? If not, explain in detail why not. If so, did any oppose the revocation of the waivers?
12. Were any career professionals in the Conscience and Religious Freedom Division consulted (not merely informed) before the revocation of the delegations of authority? If not, explain in detail why not. If so, did any oppose the revocation of the delegations of authority?
13. Please provide us with a legal analysis for how HHS reached the decision to rescind each waiver. Include all internal communications and documentation used to consider the necessity of the waivers and all analysis that was done on the potential impact of the decision before the revocations were decided.  
14. Please provide us with a legal analysis for how HHS reached the decision to rescind each delegation of authority. Include any internal communication and documentation used to consider the necessity of the delegations and all analysis that was done on the potential impact of the decision before the revocations were decided.
15. In ACF’s letter to South Carolina Governor Henry McMaster, ACF mentions that “accommodations could have been explored to address the specific religious burden identified by Miracle Hill.” Why was there no outreach to South Carolina or Miracle Hill to explore the aforementioned accommodations before revoking these waivers? Will Texas and Michigan and faith-based providers there be afforded consideration of potential accommodations?
16. Did you consult with the Governors or Attorneys General of South Carolina, Texas, or Michigan or any representatives of their offices prior to revoking the waivers?
17. Your agency appeared to justify the decision to rescind the waivers by stating that they had applied to “other similarly situated entities,” instead of applying only to the specific individual entities (Miracle Hill, St. Vincent and Archdiocese of Galveston-Houston). Why didn’t HHS leave in place the waivers for those individual entities if the justification was that the waiver encompassed similarly situated entities?
18. Will commit to maintaining the notice of non-enforcement for the 2016 grants rule and disavow its enforcement moving forward, or will HHS continue to reserve its right to revoke the notice of non-enforcement at any time?
19. Yes or no, will HHS exclude from the Title-IV E program religious adoption and foster care providers that cannot assist in the placement of children in same-sex households without violating their religious exercise when those households have alternative providers available to assist them in the state?
20. Identify every civil rights statute applicable to your agency that does not have a delegation of authority assigned to any particular component of HHS for handling of complaints.

Despite being in the middle of a pandemic, your singular focus on reversing structural and individual religious freedom protections—protections which have worked well—demonstrate that you are placing ideology over the interests of the law, children, and faith-based partners who only want to continue serving their communities in peace. It is our hope that you will promptly correct these unprecedented actions and abide by your promises made to Congress.

Sincerely,

###