Copy, Paste, Legislate

Published — June 10, 2019

Adoption centers: the latest battleground for religious freedom

A 72-foot tall replica of the Statue of Liberty holding a cross instead of a torch stands in front of a megachurch in Memphis, Tenn. A sign at the base of the statue reads, “America Return to Christ.”

A playbook developed by religious interest groups was used to push controversial new laws in statehouses nationwide.

This story was published in partnership with USA TODAY.

Introduction

Aimee Maddonna, 34, a South Carolina mother of three, was turned away by a state-funded foster care agency because she is Catholic.

Maddonna went to Miracle Hill Ministries in Greenville, the state’s largest foster care outlet, asking to volunteer in hopes of one day becoming a foster parent. But the initial screening was cut short after she was asked the name of her church.

“I said, ‘Our Lady of the Rosary’ and her exact words were, ‘You sound like you’d be the perfect mentor but we only accept Protestant Christians.”

“Saying that the majority of the population is not suitable only because of their religion…that’s archaic,” Maddonna said.

Miracle Hill asked Maddonna to go to another child placement agency that does not have the “religious requirement.” Officials at Miracle Hill defend the policy and their doctrinal statement asking applicants to agree that the Bible is “the only…authoritative Word of God” — a statement that excludes Catholics and many other Christians who do not base their beliefs on the Bible alone.

Aimee Maddonna with her two sons, ages 9 and 6, inside their home in Simpsonville, South Carolina, on April 1, 2019. The Catholic mother sued the state and federal government arguing she was discriminated against by a state funded foster care agency that only serves Protestant Christians. (Nathaniel Cary/USA TODAY NETWORK)

But Maddonna responded by suing the government officials who made it legal this past year to deny services to anyone who conflicts with their religious beliefs.

And South Carolina officials are not alone. There are at least nine other states that have passed laws allowing child placement agencies to turn away anyone who doesn’t match their religious beliefs or moral convictions, including same-sex couples. Eight of these states have passed such exemptions in just the past three years. Among them: Texas, Alabama, Michigan and South Dakota.

And the efforts have been broader still. An analysis using the Center for Public Integrity’s model legislation tracker, which analyzed nearly a million bills to detect common language and identify model legislation, found 66 bills in 21 states and the U.S. House of Representatives with model language matching the first of these exemption bills passed 16 years ago in North Dakota.

But the jousting continues on several levels. This year, a federal judge ruled against a faith-based agency that challenged New York state’s nondiscrimination policies, and Michigan agreed to enforce its nondiscrimination rules, settling a lawsuit brought by same-sex couples who had been turned away by faith-based agencies. A same-sex couple from Texas filed a similar case more than a year ago against federal agencies that arrange foster care for refugee and migrant children, including through faith-based agencies. Maddonna’s case is pending as well. Advocates on both sides of this fight say an additional onslaught of litigation is inevitable. Such is the nature of the fight over religious freedom.

In this June 26, 2015, file photo, a man holds a U.S. and a rainbow flag outside the Supreme Court in Washington after the court legalized gay marriage nationwide. (AP Photo/Jacquelyn Martin)

Copy, paste, legislate

The copycat language used in many of these bills appears rooted in a broader legislative playbook known as Project Blitz, first made available to the public in 2017 by the Congressional Prayer Caucus Foundation, a non-profit religious organization with hundreds of lawmaker-members in Congress and statehouses nationwide.

The latest version of the playbook, from 2018, includes 148 pages of strategy, talking points and model language for legislators designed to push laws that instill Judeo-Christian principles in public schools and other governmental institutions.

“It is critical to think strategically,” states the book. “Part of that effort is not to let those who want to run roughshod over religious liberty dictate the terms of the discussion.”

The Center found more than 500 bills introduced in 49 states this past decade matching the variety of model bills found in the playbook, more than 60 of which were signed into law. The research into those bills is part of a larger investigation by the Center and USA TODAY of how model legislation is being deployed in statehouses nationwide.  

Lawmakers pushing these copycat bills say they are protecting religious freedom.

In 2016, Gov. Phil Bryant, a Republican from Mississippi, signed one of these model religious freedom bills which allowed businesses and faith-based adoption agencies to refuse services based on their “sincerely held religious beliefs or moral convictions,” against same-sex marriage, premarital sex, or transgendered individuals.

“This bill simply protects those individuals from government interference when practicing their religious beliefs,” Lt. Gove Tate Reeves said in a news release.

But critics fear some legislators aren’t aware of the special interest groups behind the playbook or their organized efforts to quietly chip away at what they say should be a clear separation of church and state.

A political blitzkrieg

The Congressional Prayer Caucus was founded in 2005 by Rep. Randy Forbes, a Republican from Virginia.  

Forbes and a small group of U.S. House members would meet before sessions each week to pray in Room 219, just off the House floor in the U.S. Capitol. That same year Forbes formed the Congressional Prayer Caucus Foundation, a tax-exempt 501(c)(3) nonprofit organization, to work alongside the members and to build a network of like-minded government leaders.

Forbes declined to run in a rejiggered district in 2016, but the caucus now includes about 100 members of Congress, mostly Republicans. The foundation has a network of more than 1,100 national, state and local government leaders across 36 states, according to its website PrayUSA.com.

Foundation officials did not respond to multiple calls and emails requesting comment, but the foundation’s mission statement says it “will restore and promote America’s founding spirit and core principles related to faith and morality by equipping and mobilizing a national network of citizens, legislators, pastors, business owners and opinion leaders.”

Several conservative and pro-family groups have also been involved in Project Blitz, all of them linked to David Barton of Aledo, Texas, who founded or sits on the board of these groups. Barton is a prominent evangelical and former vice-chairman of the Texas Republican party who has created books and videos promoting the idea that the United States was founded as a Christian nation and must continue as one.

“We are at the point where we have so many secular people in the courts and office, they’re stopping the free flow of God’s expression all over the nation,” said Barton during an interview from his 2014 DVD series, The Constitutional Christian. “It was never supposed to be that way in America.”

“We are at the point where we have so many secular people in the courts and office, they’re stopping the free flow of God’s expression all over the nation.”

David Barton, prominent evangelical and former vice-chairman of the Texas Republican party 

Barton did not return multiple phone calls and emails requesting comment.

Liberals counter that the main goal of the Blitz playbook, formally called the “Report and Analysis on Religious Freedom Measures Impacting Prayer and Faith in America,” is to codify a Christian nation and advance a conservative political agenda that includes discrimination.

“This is a vague and nostalgic view for a time and a nation that never really was,” says Frederick Clarkson, a senior research analyst at Political Research Associates, a Massachusetts-based progressive think-tank and one of the first to write about Project Blitz.

Either way, the battle lines have been drawn — and there’s been fighting on multiple fronts.

A broad blueprint

The first of three Project Blitz priorities, according to the playbook, has been to push lawmakers to introduce bills promoting “Our Country’s Religious Heritage.”

Since 2015, 37 bills relating to the display of the U.S. national motto, “In God We Trust” in government buildings, public schools and license plates have been introduced in 20 states. At least nine have passed. South Dakota Republican Gov. Kristi Noem, for instance, signed a version of this model bill into law this year.

The second push has been for resolutions and proclamations recognizing the importance of religious history and freedom. At least five states — Michigan, Utah, Oklahoma Kentucky and Tennessee — have enacted measures recognizing Jan. 16 as Religious Freedom Day. Federal recognition of Religious Freedom Day began with President George H. W. Bush in 1993, and presidents have generally signed a new proclamation every year since.

January 16 is the anniversary of the 1786 Virginia Statute for Religious Freedom’s passage, which served as a model for the First Amendment of the U.S. Constitution — an amendment which says Congress “shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.”

The third Project Blitz campaign has included defining public policies in favor of biblical values concerning marriage and sexuality. Some 250 model bills with matching language have been introduced in 42 states. About two dozen of these bills have passed. In the latest legislative session, the Center found more than 40 such bills introduced in 18 states.

Typical of this category is legislation that would allow state occupational license holders, such as barbers, lawyers and even health care providers, to cite their sincerely held religious beliefs as a defense for denying services. A version in Texas — pending in a House committee —bans state agencies from adopting any rule, regulation or policy, or impose a penalty that would limit an applicant’s free exercise of religion.

Adoption rules

But much of the debate sparked by Project Blitz has focused on adoption rules.

Texas was one of the first places where the “Child Protection Act” was introduced. The first version died in committee in 2015 but lawmakers kept pushing at least six more versions of the bill until it passed in 2017.

The measure protects faith-based child placing agencies that deny services based on their sincerely held religious beliefs from losing their funding or state license and calls for these agencies to refer prospective adoptive or foster parents whom they don’t feel they can accommodate to nearby agencies that can provide that service.

Rep. Terry Canales, a Democrat from South Texas, voted for the bill but said he’d never heard of Project Blitz or the Congressional Prayer Caucus Foundation.

“These types of bills have become the norm here,” Canales said. “Sometimes it’s hard to tell if they are protecting or discriminating against someone…it’s nearly impossible to know who’s behind them or their intent.”

At least 10 of these adoption bills were introduced during the past legislative session in Arkansas, Colorado, Florida, Georgia, Kentucky, and Massachusetts. All of them remained stagnant or died in committees except for one in Tennessee — which passed the House but was then shelved in the Senate.

States that have passed adoption laws
StateYear Bill Number
Alabama2017HB24
Kansas2017SB284
Michigan2015HB4188
Michigan2015HB4189
Michigan2015HB4190
Mississippi2016HB1523
North Dakota2003SB2188
Oklahoma2018SB1140
South Carolina2018HB4950
South Dakota2017SB149
Texas2017HB3859
Virginia2012HB189
Virginia2012SB349
Source: Center for Public Integrity analysis of state legislation

Rep. Tim Rudd, a Republican from Murfreesboro, Tenn., sponsored the bill that passed in the House. He dismissed opponents’ arguments as, “philosophical discussion,” because gay prospective parents can adopt or foster through other agencies.

“Organizations that are against faith-based child placement orphanages are trying to drive them out of business or get them to adapt to their way of thinking or drop their religious beliefs through lawsuits,” Rudd said.

Rudd said the bill did not originate from Project Blitz. He said the legislation was based on Virginia’s law and was given to him by John Bumpus, a Shelbyville lawyer who ran unsuccessfully for Congress and the state legislature in the late 1990s and early 2000s.

Bumpus is also a trustee on the board of Tennessee Baptist Children’s Homes, a privately funded child placing agency that also vets prospective parents based on religion.

Greg McCoy, president of the Tennessee Baptist Children’s Homes, said even if the bill passes his organization will continue to operate without any government funding. He said his agency would rather shut down than be forced to, “break our convictions,” and this way, “there are no strings attached.”

In the courts

At Miracle Hill, prospective foster parents are asked to provide contact information of their pastor and testimony of their faith in Jesus Christ, according to their online application.

In 2010, Lydia Currie approached the Department of Social Services office in Greenville County looking to become a foster parent.

“We knew that the number of children needing care had become a crisis in our state, and that older children were being warehoused in modern-day orphanages,” she wrote in a February opinion essay for the Jewish Telegraphic Agency, a news agency focused on covering Jewish communities internationally.

“Boys with a history in the system are hard to place in families because of the assumption that they might be violent,” she added. “And we decided that we wanted to give one of them a home.”

Currie was referred by the state to Miracle Hill but when she read the online application, she learned she was barred because her family was Jewish.

Miracle Hill spokeswoman Sandy Furnell said the state’s religious exemption is not discriminatory, because it applies to agencies of all faiths and allows agencies like Miracle Hill to continue operating.  

“If faith-based child placing agencies are not allowed to follow their doctrine then we wouldn’t be faith based anymore,” Furnell said. “It would be taking the heart out of what we do best, help children find families within our own community.”

“If faith-based child placing agencies are not allowed to follow their doctrine then we wouldn’t be faith based anymore.”

Miracle Hill spokeswoman Sandy Furnell

Currie sharply disagrees. She says there are countless children across the country who are and will be affected by the exclusion of good families based on religious requirements. “For them, the time lost to an institution instead of spent with a loving family could alter the course of their lives,” Currie wrote.

There are more than 8,000 faith-based child placing agencies across the country, according to HHS. In fiscal year 2018 Miracle Hill cared for more than 300 children and received about $600,000 from the state.

It took Currie two years before she could gain access to   a 9-year-old boy who was in the care of another private agency, according to the editorial.

Meanwhile, a variety of court cases have raged on in a legal environment that seems confusing and at times contradictory.

Lata Nott, executive director of the First Amendment Center at the Freedom Forum Institute in Washington D.C., a nonpartisan educational organization, said discrimination  based on religion by any agency taking government funds is a violation of the establishment clause of the Constitution, which prohibits the government from “establishing” a religion.

“As a private organization, maybe they could do that,” Nott said, referring to the 2018 U.S. Supreme Court ruling allowing a Colorado cakeshop to deny services to a same-sex couple. “But the government can’t favor one religion over another.”

Nott said it is possible these bills are being passed in multiple states in hopes that a friendly judge will decide the Establishment Clause does not apply to faith-based adoption agencies. She said this sort of legal ‘shopping’ for a favorable ruling, also known as impact litigation, is used by both liberals and conservatives.

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The lessons of upbringing

The roots of Aimee Maddonna’s case against Miracle Hill go back to her upbringing in a home that included foster siblings. Her parents, she said, instilled in their children the importance of providing a safe, loving home to children in need of a foster family.

In 2014, Madonna and her husband —who have three children of their own —contacted Miracle Hill, she said, to see whether her family could volunteer to work with foster children.

“I wanted to volunteer first, take them school clothes shopping, to family dinners, picnics…before I threw myself into this,” said Madonna

After Maddonna provided Miracle Hill with a variety of application information, the last step, a Miracle Hill official said, was getting the name of her church as a reference. After Madonna provided that, a Miracle Hill representative wrote back later that same year to say the agency only accepted Protestant Christians.

Aimee Maddonna with her two sons, ages 9 and 6, inside their home in Simpsonville, South Carolina on April 1, 2019. Maddonna sued the state and federal government that enabled a state-funded foster care agency to deny services to non-Protestant Christians. (Nathaniel Cary/USA TODAY NETWORK)

Maddonna said she reached out again to the agency in February of this year and was turned away, but this time she decided to sue.

By then, there had already been significant political jousting over the issue in the Palmetto State.

In early 2017, nine days before President Trump took office, the U.S. Department of Health and Human Services put in place regulations requiring states to ensure the agencies receiving federal funds do not deny services to anyone on the basis of religion, according to court documents

But in February 2018, Governor Henry McMaster wrote a letter to the Administration for Children and Families in HHS asking that faith-based adoption agencies be granted a waiver from the requirement that federal grant funds be withheld or returned in case of violations of non-discrimination provisions.

Before HHS replied to his letter, McMaster issued an executive order to permit child placement agencies such as Miracle Hill to have religious requirements. And in June 2018, the legislature passed a provision granting the same exemption and protections to these agencies.

Six months later, Steven Wagner, principal deputy assistant secretary at HHS’ Administration for Children and Families, bolstered McMaster’s decision by granting Miracle Hill the same protections federally in response to the letter.  

In February, Maddonna filed a lawsuit in Greenville’s state district court alleging that the SCDSS has been aware that Miracle Hill has been turning away foster and adoptive parents and families on the basis of religion since 2017 and yet granted the agency a $600,000 grant in FY 2018.

“It is never acceptable to use state or federal funds to discriminate based on religion,” reads the complaint.

In March, McMaster asked the court to dismiss the case, arguing Maddonna’s complaint was not, “new, unusual, or unique,” to South Carolina  or the nation because state and federal governments have partnered with faith-based providers for hundreds of years and such partnerships have been widely acknowledged to be constitutionally permissible.

An initial hearing in Maddonna’s case has not yet been scheduled. But it seems inevitable that fighting will continue in the courts.

Rachel Laser, head of Americans United for the Separation of Church and State, a non-profit advocacy group promoting religious freedom who’s also representing Maddonna, said the federal government’s actions proves that the Trump administration is part of a “war on church-state separation and on religious freedom for all.”

And during this year’s National Prayer Breakfast on Feb. 7, President Trump made his stance clear.  

In this Sept. 1, 2017 file photo, religious leaders pray with President Donald Trump after he signed a proclamation for a national day of prayer to occur on Sunday, Sept. 3, 2017, in the Oval Office of the White House in Washington. (AP/Evan Vucci)

“My administration is working to ensure that faith-based adoption agencies are able to help vulnerable children find their forever families,” said Trump, “while following their deeply held belief.”

On May 21, HHS issued a new “conscience rule” that expands protections to persons and agencies working under HHS that deny services based on their religious or moral beliefs. This final rule covers more than 600,000 hospitals, physicians, mental health practitioners and other health care providers nationwide, but also some 8,000 faith-based child-placing agencies, according to HHS.

The rule is being challenged by human rights groups that filed a lawsuit a week later against HHS in U.S. District Court in San Francisco; they argue that the rule is unconstitutional and exceeds the department’s statutory authority.

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