Religious Freedom Shouldn’t Be Freedom to Discriminate

(Bloomberg Opinion) -- A South Carolina foster-care agency has asked the Trump administration to rule that it has a constitutional right to discriminate against non-Protestant and gay parents under the religious-freedom guarantee of the First Amendment.

Some evangelical Christians will be upset if the agency doesn’t get an exemption from anti-discrimination rules so that it can receive federal money. But other religious groups, not to mention the American Civil Liberties Union and gay-rights organizations, will probably sue if it does. The legal issues are complicated, and it isn’t clear who would win.

Miracle Hill Ministries is based in an area of South Carolina where it is one of main foster care agencies licensed and contracted by the state to put children in group homes and then connect them with foster parents. According to excellent reporting by the Greenville News, the agency had a budget of just over $1 million in the fiscal year ending in July 2017, of which 47 percent came from the South Carolina Department of Social Services. Some significant percentage of that came from the federal government.

According to its website, Miracle Hill has “been recruiting Christian foster families since 1988.” In practice, that means the agency won’t work with Jews, Catholics, Muslims, atheists or anyone in a same-sex relationship. The agency says that its structure is pervasively religious, and that its staff prays over every placement. Children in the agency’s group homes engage in regular religious exercises.

In many liberal states where the issue has arisen, Catholic foster-care agencies that refuse to serve gay couples have had to shut down their operations rather than conform to state laws that ban discrimination. In July, for example, a federal court refused to order the Philadelphia Department of Human Services to use religiously affiliated foster-care agencies that won’t work with same-sex couples.

South Carolina is different. If it were just up to the state, Miracle Hill would get a religious-freedom exemption to anti-discrimination rules. Several other conservative states have granted such exemptions to foster-care agencies.

But it isn’t only up to the state. Agencies whose state funding comes from federal sources have to comply with federal regulations, or else the state has to give refunds to the U.S. Department of Health and Human Services. That’s why Miracle Hill and the state have asked the federal agency to grant an exemption of its own.

Part of what makes the case unusual is that Miracle Hill doesn’t only discriminate against gay parents, as many other denominations do, but won’t do business with anyone who isn’t a committed Protestant.

In political terms, that means the requested exemption requires the administration of President Donald Trump not only to say that it’s OK with anti-gay discrimination, but that it’s willing to fund an agency that won’t place children with God-fearing (or God-denying) parents of all other religious denominations.

As a matter of principle, there isn’t really much difference between refusing to place children with gay parents and refusing to place them with Catholics, Jews or Muslims. Either way, the Christian agency is saying that it only feels comfortable placing children with people whose way of life matches what they believe God requires of all humans. Miracle Hill is just less ecumenical than Catholic Charities.

Should the Trump administration grant the exemption? And would it be legal if it did?

My view is that the exemption should not be granted. There are good reasons for the federal rules that say the government won’t fund programs that discriminate wrongfully.

Religious groups are and should be constitutionally entitled to discriminate on the basis of religion when it comes to deciding who can belong to their churches and congregations. But if they are going to receive federal funds to perform public services, it’s reasonable to require them to conform to the wider society’s generally shared values about discrimination. Imagine how outrageous it would be if Miracle Hill refused to place black children.

If the Trump administration does grant the exemption, however, it might be legally permitted to do so. The Supreme Court has allowed religious exemptions from other federal and state requirements in the past. And it has upheld the 1993 Religious Freedom Restoration Act, which grants religious-liberty exemptions from federal requirements that impose too heavy a burden against religious exercise and there is no compelling government reason not to give the exemption.

Yet it is also possible to argue that granting an exemption would violate the clause of the federal Constitution that bars “an establishment of religion.”

That’s because an exemption granted only to Miracle Hill, a Protestant group, allowing it to discriminate against non-Protestants, would endorse a particular religion. It’s unconstitutional for the government to send a message to some citizens that they are insiders, favored members of the community based on their religion, and to others that they are outsiders who are disfavored.

The way around that would be for the Trump administration to make its exemption general, applying to any foster-care agency that wants to discriminate on the basis of its own religious belief. But that would mean also allowing agencies to discriminate on the basis of race, provided they claimed that their religion required it.

The upshot is that the exemption should not be granted. The vast majority of Christian foster-care agencies find it in their consciences to place children with the best parents available, irrespective of their religion. The Trump administration shouldn’t give Miracle Hill a special right to discriminate.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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