November 18, 2021
The Honorable Ken Paxton
Attorney General of Texas
P.O. Box 12548
Austin, TX 78711-2548
Re: Withdrawal of Exception from
Non-Discrimination Requirements of 45 CFR 75.300(c) & (d)
Dear General Paxton:
On March 5, 2020, the Office for Civil Rights (OCR) sent you a letter informing you of its conclusion that Religious Freedom Restoration Act (“RFRA”) prohibited the Department of Health and Human Services (“the Department”) from applying 45 C.F.R. § 75.300(c) and (d) (“the 2016 Rule”) against Texas with respect to the Archdiocese of Galveston-Houston and “other similarly situated entities.” The 2016 Rule included a requirement that no person will be subjected to discrimination in HHS federal awards. On November 19, 2019, HHS published a notification that it would exercise discretion to not enforce the 2016 Rule, including the non-discrimination provisions in § 75.300(c) and (d), due to concerns regarding whether the 2016 Rule complied with the Regulatory Flexibility Act. See Notification of Nonenforcement of Health and Human Services Grants Regulation, 84 Fed. Reg. 63,809 (Nov. 19, 2019) (“The provisions will not be enforced pending a repromulgation that complies with the Act.”). Thus, the non-discrimination provisions in the 2016 Rule that the waiver issued to Texas sought to address are not currently being enforced. Accordingly, the religious exception Texas sought from the 2016 Rule is no longer warranted and, thus, is hereby rescinded.
The March 5, 2020 exception was overbroad and did not properly apply the substantial burden requirement under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb, et seq. HHS appreciates the historic participation of faith-based organizations in the foster care and adoption assistance programs.1 Nothing in this letter limits the ability of faith-based organizations to participate in HHS-funded social service programs on the same basis as other organizations. However, the State did not provide evidence supporting a blanket exception from section 75.300(c) & (d)’s non-discrimination requirements for the benefit of all faith-based subrecipients in Texas. And the government maintains a strong interest in tailoring the relief provided to mitigate the potential harm of limiting the diversity of available foster homes for children in the foster care population,2 many of whom identify as lesbian, gay, bisexual, transgender, and queer or questioning (LGBTQ+).
Background
Title IV-E of the Social Security Act (Act), codified at 42 U.S.C. § 670 et seq., and implemented under the Code of Federal Regulations (CFR) at 45 CFR parts 1355, 1356, and 1357, provides funding for state foster care program costs contingent on an approved state plan meeting the requirements of title IV-E and regulations. Eligible title IV-E costs include recruitment and training of foster care providers. The broad title IV-E program goals and mission are to strengthen families so that children can depend on their parents to provide them with a safe and loving home. If that is not possible, the program goals are to find a new permanent home for the child. Foster care is considered a temporary living arrangement to ensure the child’s safety and well-being until the child can be safely reunified with their parents, or, when that is not possible, while finding a permanent placement for the child through adoption, legal guardianship, or placement with a relative. Nationally, there are approximately 420,000 children in foster care, each of whom must be placed in the care of a licensed and trained foster family, making the recruitment of licensed and trained foster family homes a persistent need.3
Beginning in 2018, Texas wrote to HHS objecting to the provisions at section 75.300 (c) & (d) and requesting an exception from their application for faith-based providers in the title IV-E program. In its request, Texas did not identify a grant subrecipient that had requested an exemption to the requirements of 45 CFR 75.300(c) and (d). In addition, Texas indicated that some of the State’s faith-based providers require potential foster care or adoptive parents to share a religious faith or agree to the provider’s statement of faith.
Section 75.300(c) & (d) (2018) state:
(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.
(d) In accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. This does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law as something other than a marriage.
On November 19, 2019, HHS published a notice of nonenforcement of the regulation at 45 CFR 75.300(c) and (d), on the basis that the final rule promulgating the regulation did not comply with the Regulatory Flexibility Act.
On March 5, 2020, OCR approved the State’s request for an exception under RFRA, and with respect to “the Archdiocese or other similarly situated entities” participating in the State’s foster care program funded under title IV-E of the Social Security Act.
On January 12, 2021, HHS published a final rule (“2021 Rule”) amending 45 CFR 75.300(c) and (d) by removing the requirement prohibiting discrimination based on a variety of factors, including explicit, blanket prohibitions on discrimination on the basis of sexual orientation and gender identity, as well as the specific language that HHS grant recipients implement the United States v. Windsor and Obergefell v. Hodges decisions in the administration of HHS awards by treating as valid the marriages of same-sex couples. The 2021 Rule requires grant recipients to adhere to non-discrimination requirements in applicable federal statutes and to follow Supreme Court decisions in the administration of HHS grants programs. The 2021 Rule is currently stayed.
Application of the Religious Freedom Restoration Act
The Department takes seriously its obligation to comply with RFRA, 42 U.S.C. § 2000bb, et seq. Where RFRA requires modifying program requirements, the Department will do so. After further consultation within the Department, however, OCR has now concluded that the justification offered in the exemption letter to Texas misapplied the applicable RFRA standards. The government maintains important civil rights interests in a proper application of RFRA, and therefore clarifies the proper application as set out below.
RFRA requires the federal government to justify actions that substantially burden religious exercise by identifying a compelling interest and showing that its actions are the least restrictive means of achieving that interest. The exception provided with respect to the religious organizations participating in Texas’s IV-E program was overbroad and failed to apply the substantial burden requirement under RFRA.
First, it granted a broader exception than required, providing relief to more parties than was justified. RFRA requires evaluating the burden an individual or organization faces in determining whether to grant a religious exception, and to create class-wide regulatory exceptions that apply throughout a state, as the exception to Texas provides (even when not requested by the other child placing agencies), runs contrary to that analysis.
Second, the Department maintains a strong interest in accounting for the harms such a broad exemption could have on third parties. See Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) (In addressing religious accommodation requests, “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.”). In this case, the exception was granted in response to the burden on one specific religious organization, yet applied to “other similarly situated entities.” Moreover, the State did not provide any evidence that other organizations using similar selection criteria considered complying with antidiscrimination protections a substantial burden on their beliefs. Nor did the State proffer evidence regarding the effect the waiver would have on third parties under a class-wide exemption. See Estate of Thornton v. Caldor, 472 U.S. 703, 710-11 (1985) (striking down a Connecticut statute “which provides Sabbath observers with an absolute and unqualified right not to work on their Sabbath” because it failed to consider “special circumstances” or “whether the employer has made reasonable accommodation proposals,” which “contravenes a fundamental principle of the Religion Clauses” by going “beyond having an incidental or remote effect of advancing religion”). Because the State did not provide information regarding the other unidentified religious organizations that were granted an exemption, the burden on those other organization’s religious exercise was not established.
Any exception should be tailored to reduce the burden on a religious organization while accounting for harms to other parties. In the case of the Archdiocese and other faith-based organizations participating in the State’s foster care program, the exception could have been limited to the particular application of the religious nondiscrimination provision to which the Archdiocese objected. Cf. Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 439 (2006) (“[C]ourts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.”). Instead, the exception letter granted the Archdiocese an exemption from section 75.300 (c) and (d) in whole. In our view, accommodations could have been explored that could have the potential for addressing both the specific religious burden identified by the Archdiocese, while also minimizing the harms passed onto third parties.
Third, the IV-E program is unique, as numerous studies have confirmed that LGBTQ+ children are over-represented in the domestic foster care population, and the important role the states necessarily play in providing a broad array of foster care services to serve the domestic population under the title IV-E program.4 We believe that the prior exception might affect such children, as well as impact the State’s ability to achieve the goals of the program by providing children with stable temporary or permanent homes, especially given that the exception applied State-wide.
As for potential foster parents, the government has a strong interest in a diverse population of foster parents where possible, especially given the over-representation of LGBTQ+ children in the domestic foster care population.5 Such children could suffer psychological harm from placement in homes that do not accept them or require participation in the religious practices with beliefs contrary to the child’s beliefs. Moreover, research has shown that same-sex couples are much more likely to raise a foster child.6
Finally, the letter suggests that applying the non-discrimination provisions of section 75.300(c) and (d) would reduce the available pool of foster or adoptive parents in the State. However, the State proffered no evidence that other religious child placing agencies would similarly object to working with LGBTQ+ foster parent applicants, nor did it show how eliminating discriminatory eligibility criteria would not also result in a potential increase in the pool of available foster parents, as additional populations feel welcomed by the State and by individual child placing agencies.
For these reasons, as well as the 2019 Notice of Nonenforcement of the 2016 Rule, OCR hereby withdraws the March 5, 2020 exception letter granted to Texas.
If you require any additional information, please contact me at ███████.
Sincerely,
Lisa J. Pino
Director, Office for Civil Rights
U.S. Department of Health and Human Services
Attachment
- 1.See 45 CFR Part 87
- 2.The reference to the foster care population in this letter refers to the foster care population funded under Title IV-B and IV-E of the Social Security Act, and not to the unaccompanied refugee minor or unaccompanied children’s programs, which implicate unique programmatic expertise in working with refugee and immigrant populations, whom are served by a highly select group of care providers.
- 3.U.S. Department of Health and Human Services. Administration for Children and Families, Children’s Bureau. “Trends in Foster Care and Adoption: FY 2009-2018.” https://www.acf.hhs.gov/cb/resource/trends-in-foster-care-and-adoption.
- 4.See e.g., Bianca Wilson et al., Sexual and Gender Minority Youth in Foster Care: Assessing Disproportionality and Disparities in Los Angeles 6 (2014), https://bit.ly/3auWk3g (19.1 percent of youth surveyed in the Los Angeles County system identified as LGBTQ, suggesting that “there are between 1.5 and 2 times as many LGBTQ youth living in foster care as LGBTQ youth estimated to be living outside foster care.”); University of Maryland School of Social Work Institute for Innovation and Implementation et al., The Cuyahoga Youth Count Report (2021), https://theinstitute.umaryland.edu/media/ssw/institute/Cuyahoga-Youth-Count.6.8.1.pdf, (just over one third (32%) of youth in Cuyahoga County, Ohio’s foster care system identified as LGBTQ (compared to 9.2% nationwide average of youth age 13-17 identifying as LGBTQ+); Christina Wilson Remlin et al., Safe Havens: Closing the Gap Between Recommended Practice and Reality for Transgender and Gender-Expansive Youth in Out-of-Home Care (April 2017), https://bit.ly/2xAXlVa (LGBTQ youth make up about 5 to 7 percent of the general youth population, but research estimates that 25 percent of youth in child welfare systems are LGBTQ.); Laura Baams et al., LGBTQ Youth in Unstable Housing and Foster Care, 143 Pediatrics 3 (March 2019), https://bit.ly/3kW8Ihl (Survey of youth across California found that 30.4 percent of youth living in foster care identify as LGBTQ, as compared to 11.2 percent nationally); Cooper, K., Kastanis, A., Nezhad, S., & Wilson, B. (2014, August). Sexual and gender minority youth in foster care: Assessing disproportionality and disparities in Los Angeles, p. 37 (LGBTQ youth are 1.5 to 2 times more likely than their peers to be living in foster care), p. 7 (LGBTQ youth are 2.5 times as likely to be placed in congregate care settings like group homes). Retrieved fromhttp://williamsinstitute.law.ucla.edu/research/safe-schools-and-youth/lafys-aug-2014/
- 5.See studies listed in footnote 3, supra.
- 6.Shoshana K. Goldberg & Kerith J. Conron, How Many Same-Sex Couples in the U.S. are Raising Children, THE WILLIAMS INSTIT. 1 (July 2018), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Same-Sex-Parents-Jul-2018.pdf (Same-sex couples with children were also approximately seven times more likely than different-sex couples with children to be raising a foster child (2.9 percent versus 0.4 percent)).
