Religious Freedom May Now Include Discrimination Against Jews and Muslims

Image: Miracle Hill Ministries/Facebook

As the U.S. Department of Health and Human Services faces harsh criticism for its proposed policy to redefine “sex,” another memo sits on the desk of HHS Secretary Alex Azar, one that would allow South Carolina child welfare agency Miracle Hill Ministries to affirmatively discriminate on the basis of religion while receiving state and federal child welfare funds. While it appears that Miracle Hill has been exclusively serving Protestant families for decades, the agency came under the scrutiny of the South Carolina Department of Social Services (DSS) in early 2018, when it turned away a Jewish parent from serving as a foster mentor.

South Carolina law prohibits discrimination in the provision of child welfare services on the basis of religion. Miracle Hill is arguing that this state law violates the federal Religious Freedom Restoration Act (RFRA). This is the same law that Hobby Lobby used to successfully argue that, due to their religious beliefs, they shouldn’t be obligated to provide birth control to employees as mandated by the Affordable Care Act.

In February, after the state DSS warned Miracle Hill that its actions violated state law, ultra-conservative South Carolina governor Henry McMaster moved to protect Miracle Hill and other agencies who want to to discriminate against Jews and others and continue to receive government funding. McMaster issued an executive order that exempts faith-based child welfare agencies from state nondiscrimination law, and he personally appealed to the federal DHS to speed along Miracle Hill’s request for a personal exemption. (The state legislature later moved to enshrine McMaster’s exemption into state law, making South Carolina the tenth state to permit faith-based child welfare agencies to deny services to children and families.)

Miracle Hill claims that while it may not deign to work with parents and families who aren’t Protestant, it does refer those families and parents back to the state DSS, which also offers foster and adoption services. But soon even those referrals may not be required. In the wake of the Hobby Lobby decision, faith-based employers such as Little Sisters of the Poor successfully argued that even letting the government know that it was not willing to provide contraception would violate their beliefs. This escalation of exemptions could easily be applied to the child welfare context, and Miracle Hill might reasonably argue that even referring non-Protestants to other agencies violates their faith.

While the current coverage of the Miracle Hill exemption doesn’t touch upon the children serviced by the agency, focusing instead on the treatment of potential parents and mentors, the likely harm escalates sharply when a child welfare agency is permitted to discriminate against anyone in their care. Children, unlike adults, don’t have the opportunity to choose the agency that takes their case, and children don’t have the power or opportunity to sue an agency for discrimination.

Miracle Hill lists multiple services for children on its website, including a boy’s shelter, a children’s home, foster care services, and homelessness services for young men. The agency shares that it reunited 187 children with their families in 2017. But if Miracle Hill is offered or given the chance to work with a child and family who are not Protestant, will the agency turn away the case? Or will it accept the case, but potentially work to place that child with a Protestant foster family rather than focus on reunification with the child’s family of origin? (Miracle Hill has not yet responded to RD’s questions on this issue.)

These harms are not merely speculative. According to the South Carolina DSS, nearly 11,000 verified investigations of abuse or neglect were made between July 2017 and June 2018, many involving more than one child. In June 2018, 4,500 children lived in foster care in the state. Miracle Hill’s 2017 annual report shares that the agency served 418 children, facilitated 32 adoptions, and provided 66,844 “foster beds.” (Presumably, those are foster-bed-nights, meaning that approximately 183 children were given a place to sleep for a year, or more children for fewer nights, rather than beds for 66,844 children.)

While Miracle Hill doesn’t mention serving or not serving LGBTQ youth or families, nor is it being accused of discriminating against LGBTQ people, the specter of discrimination against LGBTQ youth and prospective parents looms in the background of the ministry’s request for an exemption, as multiple states have recently passed laws that explicitly permit agencies to do so. And earlier this year, an amendment to a federal spending bill would have forbidden states from taking action against an agency that declines to provide services based on a religious belief.

Henry McMaster, who became governor in 2017 when Nikki Haley was confirmed as ambassador to the United Nations, is facing his first election this year. Polling shows McMaster in the lead in late October, and President Trump supported his primary run, visiting South Carolina to campaign for him. But it’s unclear whether South Carolina’s voters will support a candidate who permits agencies to turn children away from needed services or turn away potential mentors and parents. The State reported that the Department of Social Services reached a settlement agreement in 2016 in a federal suit alleging “dangerous deficiencies” in its provision of care, including the fact that “only 10 percent of children receive a health assessment within 30 days of entering state care.”

Beth Lesser, the Jewish mother turned away by Miracle Hill from serving as a foster mentor, shared with the Intercept that a Miracle Hill representative told her, “Once they get [the children] in one of their group homes, they don’t let non-Christian Protestants mentor them, foster them, or anything.” It’s one thing for this kind of discrimination to occur, but it’s another altogether for it to be vigorously defended and enshrined into law.