What if a Jewish adoption agency were required to place Jewish children in Christian homes in order to avoid violating anti-discrimination laws?
This might seem far-fetched, but that is just the sort of situation that an Obama-era regulatory rule might require. Fortunately, a new rule, under consideration by the Trump administration, would fix the problem. On November 1, the Department of Health and Human Services announced the draft of a regulation that would amend an Obama-era rule that prohibits HHS from funding organizations that “discriminate” on the basis of sexual orientation or religion. The Obama regulation expanded the scope of prior anti-discrimination provisions, which were more narrowly written and included broader religious liberty exemptions. It has been interpreted to, for instance, to prohibit adoption and foster-care agencies from considering prospective parents’ religion or sexual orientation. If the Trump administration succeeds in adopting this new rule, both religious organizations and the children seeking a loving home will benefit.
Unfortunately, not everyone has responded positively. The National Center for Transgender Equality claimed that the new rule would promote anti-trans discrimination. House Judiciary Chairman Jerry Nadler (D-NY) called it “unconscionable,” and the ACLU denounced it as “license to discriminate.”
Although these concerns may be well-intentioned, they are unfounded. The draft HHS rule would safeguard the conscience rights of child welfare organizations, while providing increased resources to children who need a loving home. With more than 440,000 children in their care, it would be tragic to stymie such an important public service. Nothing in the proposed rule allows religious people to engage in invidious discrimination. On the contrary, the proposed rule applies federal nondiscrimination statutes and complies with previous Supreme Court decisions.
Religious adoption agencies do not engage in invidious discrimination when they match children with religiously compatible homes. For example, many states, including New York, recognize that a child’s religious faith should be “preserved and protected” during the adoption process. The bonds that religious communities forge on the basis of a shared worldview and common values should be celebrated, not demonized. By placing a child with parents of their own faith, religious adoption agencies believe that they are acting in the best interest of the children in their care by promoting their spiritual development.
This religious matching takes on heightened importance in instances where a child already has developed his own religious beliefs. In such cases, placing a child with a family that adheres to his religious beliefs ensures that he will not suffer a crisis of conscience in his new home. It is perfectly reasonable, for instance, for an Orthodox Jewish adoption agency to insist upon placing a child who has grown up observing the laws of the Sabbath and kashrut in a home that maintains those laws. Such considerations, however, are deemed off-limits when the government brands every act of religious solidarity as invidious discrimination.
The potential harms of the Obama regulation are highlighted by the case of the Miracle Hill Ministries, a foster-care agency that nearly lost its funding and licensing because of it. The ministry was saved by a unique exemption granted by HHS. This unfortunate situation arose because the ministry provided its services only to other evangelical Christians. This policy led to accusations of invidious discrimination, even though there was no evidence of animus.
Far from this being a Christian issue, this policy change will benefit Jews and other minority religions. During the Cold War, Jewish adoption agencies were instrumental in resettling Russian Jewish children fleeing Soviet persecution. No fair-minded person could view this heroic effort, which was an act of religious solidarity, as bigotry against non-Jews. It was an act of religious solidarity and preservation.
The most controversial aspect of the proposed regulation is that it would allow agencies to favor prospective parents whom they consider to be religiously observant. In some instances, where an agency is religiously opposed to same-sex marriage, this could lead an agency to exclude same-sex parents. This example represents a flashpoint in America’s culture wars, but it is fundamentally no different from an Orthodox Jewish agency preferring to place Jewish children with parents who observe kosher food laws. In Obergefell v. Hodges, the Supreme Court decision that created same-sex marriage, the Court recognized that “reasonable and sincere people” may continue to oppose same-sex marriage. It is time for the government to take those words seriously and to stop conflating religious convictions with bigotry.
The proposed regulation would eliminate the current unnecessary restrictions on faith-based organizations without exempting them from the current federal anti-discrimination statutes. It would therefore help allow religious agencies to serve the most vulnerable among us while respecting America’s tradition of honoring religious liberty.
This post was co-authored by Daniel Vaida.