Foster care and the growing tension between the religion clauses: A comment on Rogers v. HHS

In 2018, the U.S. Department of Health & Human Services and the State of South Carolina agreed to waive their requirements of religious non-discrimination by state-funded, licensed child placement agencies. The state had discovered that its largest provider, Miracle Hill, approved the applications of only those who shared its Evangelical Protestant faith. After Miracle Hill refused on religious grounds to assess a Unitarian couple's fitness, the couple filed suit against various federal and state defendants, alleging that the waivers constituted an establishment of religion. This paper explores South Carolina's argument that Miracle Hill's asserted free exercise rights render irrelevant constraints that the Establishment Clause might place on this religious accommodation. I conclude that the state's reliance on Fulton is misplaced. Here, the state should be deemed constitutionally responsible for the religion-based exclusion of prospective foster parents. More controversially, I contend that the state should also be held constitutionally responsible for the religious indoctrination of children placed with families approved by Miracle Hill. Such responsibility has long been and should remain a central concern of the Establishment Clause and overcomes any countervailing free exercise interests of Miracle Hill or other faith-based providers. This focus on responsibility offers significant depth and nuance to conventional but vague Establishment Clause concepts about state support of religion.