Rogers v. United States Department of Health and Human Services

Lambda Legal, the ACLU, ACLU of South Carolina, and South Carolina Equality Coalition are suing the U.S. Department of Health and Human Services (HHS) and the state of South Carolina on behalf of a married lesbian couple, Eden Rogers and Brandy Welch, who were turned away by a government-funded foster care agency for failing to meet the agency’s religious criteria, which exclude prospective foster parents who are not evangelical Protestant Christian or who are same-sex couples of any faith.

Eden and Brandy’s application to serve as foster parents was denied by Miracle Hill Ministries, South Carolina’s largest state-contracted foster care agency, after South Carolina requested and HHS granted a waiver of federal nondiscrimination rules for federally funded agencies. In so doing, HHS and the State authorized and enabled taxpayer-funded foster care agencies to use religious criteria to exclude families based on their faith and sexual orientation.

HHS and South Carolina fund Miracle Hill with taxpayer money to perform child welfare services for children in state care even though Miracle Hill made clear that it excludes families based on Miracle Hill’s religious beliefs. In order to foster through Miracle Hill, a family must agree with Miracle Hill’s “doctrinal statement,” including “that God’s design for marriage is the legal joining of one man and one woman in a life-long covenant relationship” – a requirement that excludes same-sex couples of any faith. HHS and South Carolina have sanctioned and facilitated the use of these religious criteria in the public child welfare system.

In 2018, the South Carolina Department of Social Services (DSS) determined that Miracle Hill Ministries, South Carolina’s largest foster care agency, had violated federal and state nondiscrimination policies by using religious eligibility criteria when screening prospective foster parents. Instead of enforcing the law, South Carolina Governor Henry McMaster sought a waiver from a federal rule that prohibits discrimination by recipients of federal funding to allow the agency to continue to use its discriminatory religious criteria. In November 2018, Lambda Legal, the ACLU and 75 national and state civil rights, child welfare, and faith organizations submitted a letter to HHS Secretary Alex Azar urging him not to grant South Carolina’s request for an exemption from federal nondiscrimination law for faith-based, government-funded child welfare providers and pointing out the potential negative impact on LGBT people. But in January 2019, HHS granted McMaster’s request. The waiver and South Carolina’s subsequent licensing of Miracle Hill have authorized and enabled this taxpayer-funded state-contracted agency to assess and screen out prospective foster parents based on religious requirements that ban all prospective parents who are same-sex couples of any faith or not evangelical Protestants.

In April of 2019, Eden and Brandy submitted an online application to Miracle Hill to be foster parents and identified themselves as a same-sex couple and members of their Unitarian Universalist Church, and indicated their desire to “provide a safe and loving environment” for children. On May 1, 2019, a Miracle Hill foster care licensing supervisor sent Eden and Brandy an email rejecting their application because they “feel a religious obligation to partner with foster parents who share our beliefs and who are active in a Christian church” adding that Miracle Hill “would not be a good fit to assist you in your quest . . . to become foster parents.” Eden and Brandy were turned away by Miracle Hill because of their faith and the fact that they are a same-sex couple.