Government Funding Discrimination?

In an ironic celebration of National Adoption Month, the Trump administration recently proposed a rule that will allow faith-based foster care and adoption agencies to deny their services to LGBTQ parents. The proposed rule would revoke a regulation instituted by the Obama Administration that included sexual orientation and gender identity as protected classes under anti-discrimination policies. 

The Department of Health and Human Services (HHS) released the proposed rule that grants organizations government funding despite discrimination against LGBTQ persons based on their religious beliefs. The HHS stated the proposed rule would “better align its grants regulations with federal statues, eliminating the regulatory burden, including the burden on the free exercise of religion.” 

If passed, organizations that receive governmental grants, funded by tax-payer money, are free to discriminate without penalty. Proponents of the rule applaud the administration for allowing non-profits to work in accordance with their religious beliefs. Others are horrified, claiming this is yet another exploitation of the Free-Exercise Clause used to justify and encourage discrimination of LGBTQ people.  

There was an impassioned public response to the release of the proposed rule due to the issue at hand which is the adoption of children in need. There are currently 123,000 children awaiting adoption, and in 2016, around 114,000 same-sex couples were raising adopted children. Additionally, it was found that same-sex couples are significantly more likely to be raising adopted or foster children, 21.4% compared to only 3%. 

The constitutional issue at hand is the allowance of organizations to receive federal grants despite religiously motivated discrimination. I argue this rule is beyond the scope of the Free Exercise Clause and withholding government funding to organizations who refuse to comply with discriminatory laws is not a violation of the First Amendment. 

Embedded in the Free Exercise Clause is the absolute right to believe whatever religious doctrine one chooses. However, the precedent set in Reynolds v. The United States determined “congress was left free to reach actions which were in violation of social duties or subversive of good order.” Therefore, the limitations of this clause allow for an infringement on religious freedom if there is a compelling state interest at hand that outweighs the burden of religious freedom. 

I argue this proposed rule impedes on the compelling state interest of preventing discrimination of LGBTQ persons in society. The government cannot restrict the organization's right to observe these religiously held beliefs but they do have the right to restrict specific actions. 

To support this argument, I will cite the decision of Bob Jones University v. U.S. that determined the constitutionality of revoking tax-exempt status to institutions whose discriminatory policies and practices against black students were not in compliance with public policy. The precedent set in Bob Jones justifies the state placing limitations on complete religious liberty in order to uphold essential societal standards, specifically when public funds are involved. 

The only differences I see between Bob Jones and the HHS proposed rule is forty years and the discrimination of a different marginalized group in society. The tax-exempt status of the University is comparable to the grants funding these adoption agencies, in that tax-payer money is funding the existence of the organizations. 

The complexity that is within this case is the competing state interests at hand, in keeping adoption and foster care agencies open to ensure higher adoption rates of children. The dissent, in this case, would argue the substantial burden placed on agencies would defund organizations leading to complete shutdown. This argument, however, is synonymous to mine, in that allowing discrimination hinders the state interest of placing children in loving homes, by reducing the number of applicants that qualify to adopt.

My argument is additionally supported by the recent decision by the U.S. District Court in Fulton v. The City of Philadelphia, that rejected the argument that agencies performing public child welfare services have a constitutional right to discriminate. The case was brought by a tax-payer funded government-contracted foster care agency that claimed their constitutional right to discriminate against prospective foster families headed by same-sex couples in which the court found not be in the scope of their free exercise rights. 

In a similar case recently decided by the U.S. Supreme Court, Masterpiece Cake Shop v. Colorado Civil Rights Commission, the court decided it was a burden on free exercise to force a private business owner to comply with anti-discriminatory laws that competed with his religious beliefs. Given the inherent differences between the issue at hand and that of Masterpiece, I believe the court would rule differently. A major discrepancy between the cases is the fact Masterpiece Cake Shop is a privately-owned business versus the tax-payer funded adoption and foster care agencies in question. Additionally, the court ruled in favor of Masterpiece largely in part of the lack of harm that was imposed by freely exercising religious beliefs. I believe the argument can be made in this case, the denial of a loving home to a child in desperate need can be considered harmful.

This case poses the reoccurring and relevant question about the constitutionality of using religion as an excuse to violate any-discrimination laws. This rule privileges the religious beliefs of organizations over the rights of others, while simultaneously placing them above the needs of children. The state has a compelling interest in both preventing discrimination and expanding the number of families able to adopt. 

Times are changing, and religion cannot continue as a justification to outwardly discriminate against marginalized groups in society. The Free Exercise Clause must be interpreted to properly balance the burden on free exercise and the state interest at hand to protect all rights of citizens and ensure the order of our nation.