Lawsuit challenges government-funded foster care agency’s right to discriminate against same-sex applicants

On May 8, a federal court rejected the Trump administration’s efforts to create a religious license to discriminate by allowing a lawsuit on behalf of a same-sex couple turned away from a taxpayer-funded child welfare agency to move forward. The lawsuit was filed by the American Civil Liberties Union, the ACLU of South Carolina, Lambda Legal, and South Carolina Equality.

Eden Rogers and Brandy Welch were turned away from Miracle Hill Ministries, South Carolina’s largest state-contracted foster care agency which receives hundreds of thousands of dollars in government funds that enable it to provide more comprehensive services than other agencies.

Their application to serve as foster parents was denied for failing to meet the agency’s religious criteria, which exclude prospective foster parents who are not evangelical Protestant Christian or who are same-sex couples of any faith.

“This is fantastic news, and we look forward to Eden and Brandy’s day in court,” said Currey Cook, counsel and director of the Youth in Out-Of-Home Care Project at Lambda Legal. 

“No child in foster care who can’t safely be with their family should be denied the opportunity of a loving and nurturing foster home simply because the prospective parents don’t meet a taxpayer-funded agency’s religious litmus test. Eden and Brandy’s faith and sexual orientation have no bearing on their suitability to provide a home for children in need.”

“The federal government told the over 400,000 children in our nation’s foster care system that the religious beliefs of the agencies caring for them come before their needs. Today a federal court pushed back, saying that allowing taxpayer-funded agencies to turn away qualified families because of an agency’s religious criteria violates the Constitution,” said Leslie Cooper, deputy director for the ACLU’s LGBT & HIV Project.

“We are very excited to hear our case is going forward in court. There are many children in South Carolina that need foster homes, and we remain hopeful that couples like us can provide children a lovely home without being rejected or discriminated against,” said Brandy Welch and Eden Rogers.

“The thousands of children in South Carolina’s foster care system are the ones who suffer most when agencies like Miracle Hill use religion as a license to discriminate against people who can provide a loving, nurturing home,” said Susan Dunn, legal director for the ACLU of South Carolina.

“By allowing this practice to continue, the state of South Carolina and U.S. Department of Health and Human Services have failed the vulnerable children they are supposed to be helping. We are excited this case is moving ahead and look forward to continuing the fight against the government using religion to deprive children of loving homes.”

The U.S. Supreme Court will have an opportunity to weigh in on taxpayer-funded agencies discriminating based on their religious beliefs next term. The Court will hear a case in which a foster care agency claims that the city of Philadelphia’s nondiscrimination requirement — which prohibits City-contracted foster care agencies from discriminating against same-sex couples — violates the agency’s Constitutional rights.

While these cases involve child welfare, a decision from the high court could impact a variety of taxpayer-funded government services such as health care, homeless shelters, and food delivery programs.

The attorneys working on the case are Currey Cook, Karen Loewy, and Puneet Cheema from Lambda Legal; Leslie Cooper and Daniel Mach from the ACLU; Susan Dunn from ACLU of South Carolina; Peter T. Barbur and Katherine Janson from Cravath, Swaine & Moore LLP, and M. Malissa Burnette and Nekki Shutt from Burnette Shutt & McDaniel on behalf of South Carolina Equality Coalition.

Legal documents for Rogers v. HHS are here: https://www.aclu.org/cases/rogers-v-health-and-human-services

Legal documents for the pending Supreme Court case, Fulton v. City of Philadelphia are here: https://www.aclu.org/cases/fulton-v-city-philadelphia