Written by Don Byrd

The right of religious child placement services using taxpayer dollars to refuse same-sex couples on religious grounds has been the subject of intense debate in recent years, and even legislation in many states. Now, South Carolina is asking for a ruling by the Trump Administration that such organizations also have the right to discriminate on the basis of religion under the Religious Freedom Restoration Act (RFRA). Specifically, the request revolves around a Protestant Christian adoption agency (MIracle Hill) that wants to serve only Christian families, excluding not only atheists but Muslim, Jewish, and Catholic families as well.

Using taxpayer funds to discriminate on the basis of religion undermines the spirit of religious freedom and the ability of families of all faiths to participate fully and equally in government programs.

Writing for Bloomberg, Noah Feldman argues against such discrimination, but warns it may not be unlawful:

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.

At the same time, courts have consistently indicated that combating discrimination is a compelling interest that overcomes the burden on religious freedom.

As for Miracle Hill, the state’s regulating agency has refused to reissue its license, citing the discrimination concern. But the Intercept reports that a ruling in Miracle Hill’s favor could come soon:

The organization’s last provisional state license expired July 25, and DSS won’t issue a permanent one until Miracle Hill proves it’s not discriminating — or DSS gets a federal order to make an exception.

Such an order is already drafted. It’s awaiting final signature on the desk of Secretary Alex Azar at the Department of Health and Human Services. If granted, Miracle Hill will be allowed to continue denying qualified families from adopting kids based on religious views.

Stay tuned.