The Trump Administration Will Let Adoption Agencies Turn Away Jews and Same-Sex Couples. Thank SCOTUS.

Donald Trump with bare trees and a gray sky behind him.
President Donald Trump on the South Lawn of the White House on Saturday. Pete Marovich/Getty Images

In 2014, the Supreme Court dramatically expanded the Religious Freedom Restoration Act to let for-profit corporations deny contraceptive coverage to employees on the basis of their owners’ Christian beliefs. The 5–4 ruling in Burwell v. Hobby Lobby prompted a now-famous dissent by Justice Ruth Bader Ginsburg, who condemned the court’s decision to use RFRA, a law originally intended to protect religious minorities, to legalize discrimination. “No tradition,” Ginsburg noted, “and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others.” Through Hobby Lobby, the court had transformed RFRA from a shield into a sword, creating a license to discriminate with no clear limitations.

On Wednesday, the Trump administration proved Ginsburg right. In a decision of startling breadth, the Department of Health and Human Services declared that, under RFRA, a federally funded foster care agency in South Carolina has a right to discriminate against non-Christians, closing its doors to would-be parents of different faiths. As Ginsburg predicted, the administration’s interpretation of the law has no limiting principle: It all but announced that taxpayer-funded adoption and foster care agencies may now engage in flagrant discrimination without consequence, so long as they state a religious rationale for their actions. The grim future that Ginsburg foresaw in Hobby Lobby has arrived.

The path of Wednesday’s decision began when Miracle Hill Ministries, a Christian foster care agency, refused to work with multiple applicants who did not share its beliefs. Miracle Hill turned away a Jewish woman eager to mentor children in foster care because she was not Christian. It also rejected same-sex couples because their sexual orientation did not align with its religious values. In response, the South Carolina Department of Social Services warned Miracle Hill that it could lose its license if it “intends to refuse to provide its services … to families who are not specifically Christians from a Protestant denomination.”

At that point, Republican Gov. Henry McMaster intervened, issuing an executive order granting adoption and foster care agencies the right to discriminate on the basis of religion. But a problem remained: A federal rule also prohibits HHS-funded agencies like Miracle Hill from engaging in discrimination on the basis of, among other things, religion and sexual orientation. So McMaster petitioned Steven Wagner, principal deputy assistant secretary at HHS’s Administration for Children and Families, to grant Miracle Hill an exemption. Wagner, a veteran of the George W. Bush administration’s “faith-based initiatives” program, promised McMaster’s staff that he was “pushing this hard” at HHS. And on Wednesday, Wagner granted the request in a four-page letter that amounts to an earthquake in federal civil rights law.

Wagner’s decision hinged on the turbocharged version of RFRA that the Supreme Court unleashed in Hobby Lobby. The law restricts the government’s ability to “substantially burden” a “person’s exercise of religion,” unless the government demonstrates that the burden is “the least restrictive means of furthering” a “compelling government interest.” Before Hobby Lobby, it is doubtful that a court would’ve recognized the “burden” imposed here—compelling a foster care agency to work with non-Christians—as “substantial.” After all, the federal rule merely directs Miracle Hill to serve all comers, not specifically perform services that violate the tenets of its faith. There is no clear encumbrance on “religious exercise,” only a requirement that the agency follow rules designed to place more children in loving homes without discriminating against anyone. Thus, RFRA should not apply at all.

In Hobby Lobby, however, the Supreme Court inflated the definition of a “substantial burden” to encompass more or less any religious objection an individual or corporation raises. The majority insisted that Obamacare’s contraceptive mandate constituted a “substantial burden” because it obliged companies to help finance insurance plans that included contraception coverage. If that attenuated connection is overly burdensome under RFRA, then what isn’t? Without any real explanation—but with Hobby Lobby lingering in the background—Wagner found that the federal rule barring religious discrimination among HHS-funded foster care agencies constitutes a “substantial burden” that is “inconsistent with RFRA.” And he concluded that the rule is not the “least restrictive means of advancing a compelling government interest,” obliging him to issue the waiver.

Wagner did not bother to evaluate the second half of that formula, whether nondiscrimination is a “compelling government interest.” Instead, he wrote that the federal rule is not the “least restrictive means” of promoting nondiscrimination because would-be parents rejected by Miracle Hill can go to a different agency. This logic is precisely what civil liberties advocates warned about after Hobby Lobby, when states like Indiana rushed to pass their own versions of RFRA. If religious businesses can claim a right to discriminate against customers because some other business might be willing to serve them, then America’s civil rights regime is fatally undermined. Yet Wagner deploys that exact logic to exempt Miracle Hill from the federal rule.

Notably, Wagner provides another reason for granting Miracle Hill an exemption: He notes that the current HHS nondiscrimination policy, implemented during the Obama administration, goes beyond the requirements laid out in a federal statute. The fact that the HHS rule spells out stronger protections than the statute, Wagner writes, is “relevant” to his “determination” that the policy violates RFRA.

This assertion is absurd. Wagner is correct that the HHS policy does not align perfectly with the federal statute it seeks to implement. That is unsurprising: Agencies routinely supplement the plain text of a law with reasonable interpretations of congressional intent; here, HHS simply sought to enforce Congress’ direction that children be placed in safe homes “in a timely manner” without arbitrary impediments. The agency’s broad interpretation does not permit Wagner to unilaterally overturn a rule that remains on the books, in full force. If the Trump administration would like to repeal this policy, it can do so through the rule-making process.

Wednesday’s decision purports to apply only to Miracle Hill, but its reasoning extends to every other foster and adoption agency that asserts a religious mission. Texas Attorney General Ken Paxton has already requested an exemption from the federal rule for all the state’s agencies; Wagner will presumably grant it. Once he does, other conservative states may begin to demand exemptions from the HHS policy, opening the floodgates to widespread discrimination. Non-Christian families and same-sex couples will be turned away from state-subsidized child welfare agencies because of their identity or religious beliefs—discrimination that the Trump administration views as “religious liberty.” With Hobby Lobby, the Supreme Court turned RFRA into a dangerous new weapon. The Trump administration has now taken up its call to arms.