Federal court in South Carolina rules lawsuit over taxpayer funding of discriminatory foster child placement service may proceed

by | Aug 18, 2020

A federal judge in South Carolina has denied a motion by federal and state defendants to dismiss a lawsuit challenging the use of federal funds to support a child placement agency (CPA) that discriminates on the basis of religion. Plaintiff Aimee Maddonna was turned down as a foster child mentor by the protestant Miracle Hill Ministries because of her Catholic faith. She argues, among other things, that the Establishment Clause does not allow for such discrimination in administering a government service with taxpayer funds. In its ruling last week, the court held that, assuming the facts she alleges are correct, Maddonna is right.

Last year, Miracle Hill came to the attention of church-state observers when the Trump Administration granted a waiver to South Carolina allowing an exemption for Miracle Hill from nondiscrimination requirements using federal funds. As BJC Executive Director Amanda Tyler said at the time, the waiver indicated a “dramatic and troubling shift … [that] shows more concern for the providers than children in need and willing parents.” Subsequently, HHS proposed expanding the waiver’s policy nationwide, issuing a proposed rule barring states from excluding faith-based child placement service organizations that subject their applicants to a religious test.

The move is in step with a broader, ongoing effort to increase government funding for religious organizations, and to lower the safeguards protecting against the use of federal funds for religious purposes, or in accordance with religious beliefs. Proponents of the effort to fund religious entities, like the defendants here, argue in part that excluding religious organizations, even to protect church-state separation, would itself be discrimination and is thus barred by the First Amendment. They claim an accommodation is required, even if that opens the door to acts of discrimination that otherwise would be forbidden. In the context of child placement services, the court in Maddonna v. HHS rejected that legal argument.

Here is an excerpt from the opinion (citations removed):

Supreme Court precedent “allow[s] religious communities and institutions to pursue their own interests free from governmental interference, but [the Supreme Court] ha[s] never hinted that an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation.” As the Supreme Court has explained, “[t]he principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause. It is beyond dispute that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a state religion or religious faith, or tends to do so.” This is what Plaintiff alleges in this case: that by knowingly funding an agency that uses religious eligibility criteria to screen prospective foster parents, Defendants have “sponsored and funded” religious discrimination.


“[T]he core rationale underlying the Establishment Clause is preventing ‘a fusion of governmental and religious functions[.]’” According to the Complaint, the system which Defendants’ “accommodations” have created “does not by its terms require that [religiously affiliated CPAs’] power be used in a religiously neutral way.” Rather, under the Executive Order and the HHS Waiver, religiously-affiliated CPAs’ power to accept or reject prospective foster parents is completely “standardless, calling for no reasons, findings, or reasoned conclusions.” Defendants appear to argue that it is not their responsibility to ensure “that the delegated power ‘[is] used exclusively for secular, neutral, and nonideological purposes.’” Contrary to Defendants’ argument, the Supreme Court has long recognized that the Constitution does not permit “a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.” Therefore, to the extent Defendants’ assert that their actions are immune from challenge under the Establishment Clause as “religious accommodation,” such argument is directly contrary to the well-pled allegations in the Complaint and long-established federal jurisprudence and must be rejected at this stage of the proceedings.

The ruling allows Maddonna’s lawsuit, which is being litigated by Americans United, to continue. For more background and information, see AU’s resource page on the case.

The U.S. Supreme Court has agreed to hear a case involving a similar issue in Fulton v. City of Philadelphia. There, the 3rd U.S. Circuit Court of Appeals previously affirmed a decision by the city of Philadelphia to end a contract with Catholic Social Services (CSS), which provides child placement services, because they would not commit to abiding by the city’s nondiscrimination laws.