In waning days of Trump presidency, Department of Health and Human Services undercuts religious liberty protections in new final rule

by | Jan 13, 2021

The Department of Health and Human Services has issued a final rule in the last days of the Trump presidency, seeking to shield religious organizations receiving government funds from nondiscrimination requirements. The rule specifically carves out an exemption for adoption and foster care service providers receiving government grants from requirements that they refrain from discriminating when placing foster children and screening potential foster parents.

NBC News reports:

According to the 77-page release, published Tuesday in the Federal Register, Obama-era requirements that agencies refrain from discrimination on the basis of sex, religion, sexual orientation and gender identity and recognize same-sex marriages as legally valid violate the Religious Freedom Restoration Act.


“Given the careful balancing of rights, obligations, and goals in the public-private partnerships in federal grant programs, the Department believes it appropriate to impose only those nondiscrimination requirements required by the Constitution and federal statutes,” the rule states.

The rule also comes as a case is pending in the Supreme Court that raises a similar issue. In Fulton v. City of Philadelphia, Catholic Social Services is challenging on religious liberty grounds a requirement that they refrain from discrimination in selecting the pool of parents eligible to be foster parents. 

BJC is urging the Court to uphold the nondiscrimination requirement in that case. “When faith-based groups voluntarily contract with the government to carry out the government’s duty to find safe homes for children in its custody,” BJC General Counsel Holly Hollman explained, “they must work within the government’s guidelines to ensure qualified families aren’t turned away on the basis of religion, sexual orientation or for other discriminatory reasons.”

In 2019, HHS issued a waiver allowing a South Carolina foster care provider to reject an otherwise qualified applicant seeking to mentor foster care parents because she is Jewish. This final rule would allow similar religious discrimination to take place across the country. In August of 2020, a suit challenging the waiver as – among other things – a violation of the Establishment Clause was allowed to go forward. Meanwhile, the Supreme Court decision in Fulton is expected in the first half of this year.

Late in 2020, numerous federal agencies issued a joint final rule that weakened religious liberty protections for the beneficiaries of government-funded service programs.