Rogers v. U.S. Dep't of Health & Human Servs., Civil Action No. 6:19-cv-01567-TMC

466 F.Supp.3d 625

Eden ROGERS and Brandy Welch, Plaintiffs,

v.UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; Alex Azar, in his official capacity as Secretary of the United States Department of Health and Human Services; Administration for Children and Families; Lynn Johnson, in her official capacity as Assistant Secretary of the Administration for Children and Families; Steven Wagner, in his official capacity as Principal Deputy Assistant Secretary of the Administration for Children and Families; Henry McMaster, in his official capacity as Governor of the State of South Carolina; and Michael Leach, in his official capacity as State Director of the South Carolina Department of Social Services, Defendants.

Civil Action No. 6:19-cv-01567-TMC

United States District Court, D. South Carolina, Greenville Division.

Signed May 8, 2020

Cathren Irene Cohen, Pro Hac Vice, Lambda Legal Defense and Education Fund Inc., Los Angeles, CA, Daniel Mach, Pro Hac Vice, American Civil Liberties Union, Washington, DC, Derek Kinwai Mong, Pro Hac Vice, Katherine D. Janson, Pro Hac Vice, Peter T. Barbur, Pro Hac Vice, Cravath Swaine and Moore LLP, Karen Lee Loewy, Pro Hac Vice, Marshall Currey Cook, Pro Hac Vice, Lambda Legal Defense and Education Fund Inc., Leslie Jill Cooper, Pro Hac Vice, American Civil Liberties Union Foundation, New York, NY, Mary Malissa Burnette, Nekki Shutt, Burnette Shutt and McDaniel PA, Columbia, SC, Susan King Dunn, American Civil Liberties Union of SC Foundation, Charleston, SC, for Plaintiffs.

Christie V. Newman, US Attorneys Office, Columbia, SC, James Ryan Powers, Pro Hac Vice, US Department of Justice CV Division Federal Programs Branch, Washington, DC, for Defendants United States Department of Health and Human Services, Alex Azar, Administration for Children and Families, Lynn Johnson, Scott Lekan.

Jay Thomas Thompson, Ethan Jonathan Bercot, Nelson Mullins Riley and Scarborough LLP, Robert DeWayne Cook, SC Attorney General's Office, Columbia, SC, Miles Edward Coleman, Nelson Mullins Riley and Scarborough LLP, Greenville, SC, for Defendant Henry McMaster.

Kenneth Paul Woodington, William Henry Davidson, II, Davidson Wren and Plyler Pa, Columbia, SC, for Defendant Michael Leach.

ORDER

Timothy M. Cain, United States District Judge Plaintiffs Eden Rogers ("Rogers") and Brandy Welch ("Welch") (collectively, "Plaintiffs") filed this suit alleging various constitutional violations based on their inability to serve as foster parents through a private child-placement agency, Miracle Hill Ministries ("Miracle Hill"), because of their religion and sexual orientation.¹ See generally (ECF No. 1). Plaintiffs contend that Miracle Hill receives government funding and is state-licensed and, therefore, should not be able to discriminate and deny them the ability to foster with its programs based on their religion or sexual orientation. See id. Pertinent to this action, Plaintiffs allege that Defendant Henry McMaster ("McMaster") and Defendant Michael Leach ("Leach") (collectively the "State Defendants") enabled, sanctioned, and failed to implement adequate safeguards against such discrimination by seeking a waiver from the Department of Health and Human Services ("HHS") to permit South Carolina's faith-based child-placement agencies ("CPAs") to discriminate in violation of 45 C.F.R. §§ 75.300(c) and (d), while still receiving government funding, and by McMaster issuing Executive Order No. 2018-12, directing the South Carolina Department of Social Services ("DSS") to permit faith-based CPAs to associate only with " ‘foster parents and homes who share the same faith’ " as the subgrantee " ‘in recruiting, training, and retaining foster parents’ " and to not deny licensure to faith-based CPAs on such basis. Id. at 19–21. Plaintiffs further contend that Defendants HHS, Alex Azar ("Azar"), the Administration for Children and Families, Lynn Johnson ("Johnson"), and Steven Wagner ("Wagner") (collectively the "Federal Defendants") have enabled, sanctioned, and failed to provide adequate safeguards against such discrimination by granting the South Carolina Foster Care Program an exemption from the religious anti-discrimination component of 45 C.F.R. § 75.300(c). Id. at 19–23.

This matter is before the court on the Defendants’ various motions to dismiss.

(ECF Nos. 50, 54, 57). The State Defendants filed separate motions to dismiss,² (ECF Nos. 54, 57), and the Federal Defendants filed a joint motion to dismiss (ECF No. 50). Plaintiffs filed a joint response in opposition to all three of Defendants’ motions to dismiss. (ECF No. 61). The State Defendants filed separate replies³ (ECF Nos. 66, 67), and the Federal Defendants filed a joint reply (ECF No. 68). These motions to dismiss are now ripe for review. After carefully reviewing the record and the parties’ extensive briefings, the court concludes a hearing is unnecessary to decide this matter. See Local Rule 7.08 (D.S.C.). For the reasons set forth below, the court grants Defendants’ motions as to Plaintiff's equal protection claim for religious discrimination and denies the motions as to Plaintiff's remaining claims for violation of the Establishment Clause and equal protection based on sexual orientation discrimination.

I. BACKGROUND AND PROCEDURAL HISTORY⁴

South Carolina has faced an increasing need for foster homes over the past seven years, and South Carolina has been unable to meet the demand, leaving almost two thousand children without home placement. See (ECF No. 1 at 7–8). In an attempt to meet these growing needs, DSS contracts with private CPAs, who receive licenses from the state, as well as state and federal funding, to "recruit prospective foster parents and screen them for their suitability to obtain a foster care license." (ECF No. 1 at 8). Pursuant to Title IV-E of the Social Security Act, South Carolina receives reimbursement from HHS for a portion of the state's foster care expenditures, which the state then uses to partially reimburse the CPAs for their services. Id. at 10; see also S.C. Code Ann. § 63-9-30(5) ; S.C. Code Regs. § 114-4910.

DSS typically issues one-year licenses to CPAs that meet all regulatory and DSS requirements. (ECF No. 1 at 9) (citing S.C. Code Regs. § 114-4930(E) ). DSS then monitors those CPAs to ensure that they continue to comply with federal and state law requirements and regulations. Id. (citing S.C. Code Regs. § 114-4920(E) ). If a CPA is temporarily unable to comply with a state foster-care regulation, DSS may grant the agency a temporary license if the agency provides DSS with "a written plan to correct the areas of noncompliance within the probationary period." Id. (citing S.C. Code Regs. § 114-4930(F) ). Further, if a CPA fails to comply with licensing regulations and DSS concludes that compliance cannot be accomplished within a set or reasonable time, DSS may deny or revoke the CPA's license. Id. (citing S.C. Code Regs. § 114-4930(G) ).

DSS's Human Services Policy and Procedure Manual (the "DSS Manual") sets forth its recruitment polices and requirements. See id. at 10. In particular, the Manual provides that DSS "is committed to the exercise of non-discriminatory practice, and shall provide equal opportunities to all families and children, without regard to their race, color, and national origin, and religion, state of residence, age, disability, political belief, sex or sexual orientation." Id. (quoting DSS Manual § 710). The DSS Manual further mandates "that ‘no individual shall be denied the opportunity to become a foster or adoptive parent on the basis of race, color, national origin, religion, state of residence, age, disability, political belief, sex, or sexual orientation.’ " Id. (quoting DSS Manual § 710).

In addition to the State policies and regulations, DSS and any CPAs with which it contracts must also comply by federal statutory and regulatory requirements in order to receive federal funding under Title IV-E of the Social Security Act. See id. Although faith-based organizations like Miracle Hill are entitled to participate in HHS-funded foster care programs, HHS explicitly prohibits any organization participating in its programs from " ‘discriminat[ing] against a program beneficiary or prospective program beneficiary on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to attend or participate in a religious practice.’ " Id. at 11 (quoting 45 C.F.R. § 87.3(d) ). Title IV-E also provides that, in order for a state to receive federal funding for its foster care system, " ‘neither the State nor any other entity in the State that receives funds from the Federal Government and is involved in adoption or foster care placements may—(A) deny to any person the opportunity to become an adoptive or a foster parent, on the basis of the race, color, or national origin of the person ....’ " Id. at 12 (quoting 42 U.S.C. § 671(a)(18) ). Additionally, as a part of its contracts with the state foster care systems, HHS requires " ‘that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as ... religion ... or sexual orientation.’ " See id. at 12–13 (quoting 45 C.F.R. § 75.300(c) ).

Miracle Hill is one of the CPAs in Greenville, South Carolina, and it serves the counties of Abbeville, Anderson, Cherokee, Greenville, Greenwood, Laurens, Newberry, Oconee, Pickens, and Spartanburg (known as "Region 1"). Id. at 13–14. Miracle Hill is a faith-based ministry, and it is the largest CPA in both the state and the upstate South Carolina region. Id. at 13–15. As a CPA, Miracle Hill provides comprehensive services to foster families and children, including assisting prospective foster parents through the licensing process, conducting regular home visits, and accompanying foster parents to all court hearings. Id. at 14. However, Miracle Hill works...