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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. Eden Rogers and Brandy Welch, a Unitarian, married same-sex couple, applied to Miracle Hill to be certified as foster parents. After Miracle Hill refused on religious grounds to assess the couple’s fitness, the couple filed suit against various federal and state defendants, alleging that the waivers constituted an establishment of religion and violated the couple’s right to equal protection. The federal district court refused defendants’ motion to dismiss the couple’s Establishment Clause claim. In light of the Supreme Court decision in Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), Carolina renewed its motion to dismiss the complaint, asserting that Miracle Hill’s right to the Free Exercise of Religion requires the state to waive its prohibition on religion-based discrimination by child placement agencies.

This paper explores South Carolina’s argument that Miracle Hill’s purported free exercise rights render irrelevant constraints that the Establishment Clause might place on such accommodations. In this context, 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 argue 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.

The author is the David R. and Sherry Kirschner Berz Research Professor in Law and Religion at the George Washington University Law School.

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