- The Washington Times - Friday, November 19, 2021

The attorney who spent two years helping promote the rights of religious institutions while at the Department of Health and Human Services is preparing to sue his former agency over its reversal this week of religious-freedom protections granted to child welfare organizations. 

Justin Butterfield, who served for two years as HHS’s senior adviser for conscience and religious freedom in the Trump administration, said Friday he’ll go to court on behalf of those adoption and foster parenting agencies that now will face federal demands not to deny placing children with LGBTQ families and to people who don’t support the agencies’ beliefs. 

“If there’s a religious organization, and their religious liberty rights are trampled by HHS, as we’ve seen dozens and dozens of times in years past, we will stand up with them and will take HHS to court,” Mr. Butterfield, now deputy general counsel at First Liberty Institute, a public interest law firm in Plano, Texas, said in a telephone interview. 

Mr. Butterfield added, “HHS is perfectly capable of reading federal law and recognizing that they’re doing something that’s going to burden the religious convictions of religious organizations across this country. And the government can take responsibility for its actions and avoid that in the first place. But if they’re not going to, we’re going to stand up and fight them.” 

Other religious liberty advocates Friday expressed outrage at the Biden administration’s move, while one legal expert said the see-sawing of such exemptions with new administrations in Washington doesn’t help the people the Trump-era rules intended to protect. 

In a statement, a U.S. Conference of Catholic Bishops spokesperson said, “The reports of multiple actions by the Department of Health and Human Services this week appear to demonstrate a troubling attack on the religious freedom and rights of conscience of health care and child welfare providers, which will only serve to harm their beneficiaries. We continue to assert our right to serve others regardless of background and in accord with our faith.”

The HHS move drops waivers granted under President Trump to the states of Michigan, South Carolina, and Texas, as well as certain child welfare agencies in those states, and would require groups receiving federal funds. 

Announcing the move on Thursday, HHS Secretary Xavier Becerra asserted the move “supports the bedrock American principle and a core mission of our department — to ensure Americans have access to quality health and human services. Our action ensures we are best prepared to protect every American’s right to be free of discrimination.” 

Supporters of the move said private agencies contracting with the government and spending taxpayer dollars should not be able to cite religious beliefs to avoid giving equal treatment to all applicants. 

The federal health department, said Rachel Laser, president of the United States for Separation of Church and State, in a statement issued after Mr. Becerra’s announcement, “should never allow taxpayer-funded care agencies to use a religious litmus test to discriminate against Catholics, Jews, LGBTQs and other families who would like to help children who are in foster care.” 

The HHS reversal comes just months after the Supreme Court ruled 9-0 against the city of Philadelphia over its refusal to contract with Catholic Social Services unless the faith-based agency agreed to certify same-sex couples as foster parents. The high court said such a demand violates the First Amendment’s free exercise of religion clause. 

Thursday’s decision “by HHS is really tragic and really sad to see,” said Mary Beth Waddell, director of federal affairs–family and religious liberty, at the conservative Family Research Council. “It’s not going to be helpful to the children who are in need. We need an all-hands-on–deck approach, and that means allowing faith-based entities to be in this space and to have an equal footing.”

Ms. Waddell said some women in a crisis pregnancy “want a faith-based agency to walk with them through that; they want a faith-based home to put their child in, and that’s the one parenting decision that they get to make.”

The FRC official blamed the controversy over the matter on those who don’t grasp the scope of the First Amendment’s religious liberty provisions. 

“A lot of people just don’t understand the broad nature of the First Amendment. … It’s not just your right to worship in your own home or in the church, the temple, or synagogue that you may choose,” Ms. Waddell said. “It is your right to practice your religion, including the exercises of it, and not just hold the belief but act on that belief in the public square.” 

Another public interest law firm, Alliance Defending Freedom, also attacked the HHS decision. 

“Christian adoption providers who help children find loving homes with married moms and dads should be protected,” said ADF Senior Counsel Matt Sharp. “It is wrong to demand that organizations, like New Hope Family Services and Catholic Charities West Michigan, undergo unwarranted and unreasonable scrutiny simply for desiring to serve children and families in their communities in a manner consistent with their religious beliefs.” 

The two agencies named by Mr. Sharp are ADF clients who’ve sued over what they claim is harassment by states opposing their religious-based principles. 

Attorney Mat Staver of public-interest group Liberty Counsel, said via email, “The Biden administration continues its anti-religious freedom agenda.” 

He asserted the current U.S. administration “has become the most lawless, anti-life and anti-freedom administration in our lifetime – and that is saying a lot considering the Obama administration.”

Robin Fretwell Wilson, a University of Illinois–Champaign-Urbana Law School professor and expert on religious liberty issues, told The Washington Times the back-and-forth of succeeding administrations granting and removing the exemptions isn’t helpful. 

“If an administration gives a wholesale exemption from general duties to serve all people, they will not hold onto that approach over time,” Ms. Wilson said.  “This happened with the adoption and foster care waivers. The fragility of that ‘protect-one-side-only’ approach ultimately disserves the very people that the Trump regulation purported to protect,” she added. 

Ms. Wilson said the HHS switch “is a lesson in overreach, taking into account only one set of interests is inherently destabilizing and converts what could be a win-win into a temporary gain.”

• Mark A. Kellner can be reached at mkellner@washingtontimes.com.

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