In October, the Anti-Defamation League (ADL), an organization that claims to be founded on Jewish values, accused South Carolina’s Miracle Hill foster care agency of discrimination for exclusively serving Christian parents. The ADL blasted Miracle Hill’s action of recruiting only Christian foster care parents as “immoral” and “deeply disturbing.”
But the ADL forgets that, for more than a century, American Jewish organizations have placed Jewish children with Jewish families. During World War II, the Hebrew Immigrant Aid Society (HIAS) and the German Jewish Children’s Aid Society (GJCAS) helped Jewish orphans fleeing Nazi persecution find homes with Jewish families in the United States. Five decades later, as Jewish orphans fled the Soviet Union, Jewish organizations in the United States helped them find Jewish homes. This was not a story about discrimination, it was about preservation—of shared traditions, history, and values.
Rather than honor these traditions, the ADL has joined the American left’s ongoing crusade to eradicate faith from our nation’s foster care and adoption agencies. In Philadelphia, Catholic Social Services is desperately fighting the city for the right to continue to serve children without sacrificing its Catholic principles. In Buffalo, New York, Catholic Charities was forced to end its adoption services because of its practice of placing a child only with both a mom and a dad.
The left’s war against faith-based adoption agencies will have dire consequences for children who need homes. There are more than 440,000 children in foster care in America, 92,000 of whom are there because of the rising illicit drug epidemic that has left tens of thousands of children in desperate need of care. Shutting down faith-based adoption agencies will only lead to a shortage of homes for these children.
It is hard to understand the ADL’s outrage as anything other than a desire to ban religion from public life. It certainly has nothing to do with ensuring that non-Christian couples are able to foster and adopt.
People of any faith or background can adopt from secular agencies in all 50 states. If the Jewish couple whom Miracle Hill sought to refer to another agency had driven five minutes down the road to Specialized Alternatives for Families and Youth agency’s Greenville office or to one of the other nine foster care agencies in Greenville County, they would have found someone willing to work with them.
The ADL thinks that publicly funding faith-based adoption agencies violates the establishment clause of the First Amendment, but it is wrong. Although the First Amendment prohibits any “establishment of religion,” its framers never thought that providing funding to religious organizations on the same basis as to secular organizations would count as an unconstitutional establishment of religion. Indeed, the Supreme Court held in Trinity Lutheran that the government may fund religious organizations on equal footing with secular ones without running afoul of the establishment clause.
What this case is really about is the free exercise of religion under our laws. That is why faith-based agencies like Miracle Hill need President Trump and the Department of Health and Human Services to implement regulations that support one of our most cherished founding principles: religious freedom.
To that end, President Trump should revise the 11th-hour federal regulation the Obama administration issued (45 C.F.R. § 75.300 (c) and (d)) that modified the non-discrimination clause in Title IV-E of the Social Security Act to include religion and sexual orientation. President Obama’s regulation gives faith-based adoption agencies an ultimatum: either abandon your deeply held religious beliefs or shut down. Remember, any qualified person, regardless of his or her faith, lack of faith, orientation, or gender identity, can already become a foster parent, and revising this regulation would not alter or limit those rights.
HHS could also endorse Miracle Hill and the state of South Carolina’s position that the First Amendment and the Religious Freedom Restoration Act (RFRA) law protect Miracle Hill from being forced to comply with the Obama regulation. Under RFRA, the federal government generally may not substantially burden someone’s exercise of religion absent the most compelling of governmental needs, and the First Amendment and RFRA take priority over the Obama regulation.
The ADL’s shortsighted view calls to mind the famous scene from “A Man For All Seasons.” William Roper wants to cut down all the laws in England to go after the devil. Sir Thomas More replies “Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? Yes, I’d give the Devil benefit of law, for my own safety’s sake!”
In this case, the ADL wants to cut down our constitutional free exercise tradition to go after what it thinks is the devil, Miracle Hill. But the same arguments that the ADL wields against Miracle Hill could have been asserted just as easily against the Hebrew Immigrant Aid Society and the German Jewish Children’s Aid Society during World War II.
That should give the ADL pause and, with a bit of reflection, should prompt it and all fair-minded Americans to affirm and protect the right of religious organizations to work, serve, and partner in keeping with their distinctive religious character and convictions.