SC Gov. Henry McMaster Asks Court to Protect State’s Right to Partner with Faith-Based Foster Care Agencies

The ACLU filed a lawsuit against the U.S. Department of Health and Human Services (HHS), Governor Henry McMaster of South Carolina, and Michael Leach, director of the South Carolina Department of Social Services, over claims that a private faith-based foster care agency called Miracle Hill discriminates against homosexual couples. The ACLU asked a court to block the government from contracting with Miracle Hill.

Becket Law, which represents the defendants, said that the governor obtained a waiver from HHS to protect the religious freedom on faith-based agencies.

The defendants last week filed a motion for summary judgment in the case. The ACLU represents plaintiffs who claim, among other things, that they would be harmed if they can’t foster children through Miracle Hill, a private agency. They also claim that accommodating Miracle Hill’s religious-freedom waiver “would cause same-sex couples to suffer from a lack of options; that Miracle Hill supports a disproportionate number of foster families…”

But the governor said this isn’t true. Most foster families work with the South Carolina Department of Social Services.

Gov. McMaster reminded the ACLU that the law has changed. The U.S. Supreme Court held in Fulton v. Philadelphia (2021) that the city’s non-discrimination requirement imposed a burden on Catholic Charity Service’s (CSS) free exercise of religion. Like Miracle Hill, CSS sought to place children with married couples: one man and one woman.

“Under Fulton, accommodation of Miracle Hill’s religious exercise is perfectly permissible—even more, it is constitutionally required,” Gov. McMaster wrote (PDF) in the motion.

The governor also cited Kennedy v. Bremerton School District (2022) to support the motion for summary judgment. In that case, the school district fired football coach Joseph Kennedy after he refused to stop praying on the 50-yard-line with players after games. The Supreme Court held that the First Amendment protects an individual engaging in a personal religious observance from government reprisal.

“Faith-based agencies are effective at placing children in loving homes, and the Supreme Court unanimously protected their rights,” vice president and senior counsel at Becket Lori Windham said. “This attempt to shutter faith-based agencies means fewer choices for foster parents and fewer homes for kids. South Carolina decided it could do better, and it shouldn’t be hauled into court for doing the right thing.”

The U.S Constitution, the federal code, and Supreme Court case law are on the side of non-profit, faith-based foster care agencies like Miracle Hill.

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