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Can adoption agencies discriminate against prospective parents?

Five years ago, the U.S. Supreme Court made a monumental decision that effectively turned the Religious Freedom Restoration Act (RFRA)—a law designed to protect religious minorities—on its head. In the case of Burwell v. Hobby Lobby, the Court ruled 5-4 that a Christian owner of a for-profit corporation may use their own religious beliefs to dictate the company’s actions.

Justice Ruth Bader Ginsburg wrote a landmark dissenting opinion in this case, noting that “[n]o tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others.”

Last month, the adoption community witnessed the first attempt to use this ruling to discriminate against prospective adoptive parents.

Miracle Hill Ministries—a Christian foster care agency based in South Carolina—used the amendment to RFRA as grounds to discriminate against people who did not uphold the agency’s Christian values. They refused a Jewish woman from serving as a mentor to foster children and also rejected a same-sex couple from adopting.

South Carolina’s Department of Social Services issued a warning to Miracle Hill that such behavior constitutes discrimination—and could result in the loss of their license. However, South Carolina’s governor intervened by issuing an executive order permitting such behavior. He then reached out to the U.S. Department of Health and Human Services (HHS) for support.

HHS responded by issuing a four-page letter asserting that, under the Hobby Lobby decision, the government does not have the right to “substantially burden” a “person’s exercise of religion”—thereby permitting Miracle Hill’s discriminatory actions.

This decision has serious implications on adoption agencies with conservative religious missions around the country. The Hobby Lobbycase has opened the door for states to use an interpretation of “substantial burden” to defend their practice of religious or sexual orientation discrimination.

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