November 19, 2019

Dear Secretary Azar,

The Jewish Coalition for Religious Liberty (JCRL) is a non-denominational organization
of Jewish communal and lay leaders who seek to protect American’s ability to practice their
faith. We write in support of the proposed rule.
The current version of 45 C.F.R. § 75.300 prevents some religious organizations from
helping the disadvantaged while also observing their faith. As currently written, that section
prohibits recipients of HHS funds from engaging in “discrimination” based on, among other
things, religion, gender identity, and sexual orientation. We support the Department’s proposal
to bring this rule into line with other federal nondiscrimination provisions and to provide more
robust protection for religious liberty. Doing so will allow religious charities to continue serving
the disadvantaged, and it will not open the door to invidious discrimination.
As the Department recognized, the current regulation, adopted in 2016, will “reduce the
effectiveness” of programs intended to support organizations including adoption and foster care
agencies by “reducing the number of entities available to provide services under these
programs.” The existing rule harms religious organizations by depriving them of their
constitutional and statutory rights1, and perhaps more dismayingly, it hurts America’s most
vulnerable children by reducing the number of organizations working to find them homes.
Throughout American history, religious groups have played a prominent role in placing
children with adoptive and foster families. Today, state and local governments continue to rely
on religious groups to help children find loving families who are ready to adopt and care for
them.2 These groups strive to place children in loving homes while respecting the religious and
moral beliefs of the children, the children’s birth parents, and of the agency itself. States have
long recognized the importance of such interests.3 The 2016 regulation improperly interferes
with that public-service, and therefore it should be modified by the proposed rule.

Religious agencies’ faith-based commitments are integral to and inseparable from the
good works that they provide. If a regulation such as the 2016 version of § 75.300 prohibits the
agencies from following their consciences, it will also inevitably force them to stop their
charitable acts. Such an outcome is contrary to America’s cherished ideals of religious liberty
and harmful to vulnerable children. No one benefits from such circumstances, and the
Department should swiftly adopt the proposed regulation to remedy this situation.

1
Buck v. Gordon, No. 1:19-CV-286, 2019 WL 4686425 *13 (W.D. Mich. Sept. 26, 2019) (enjoining the federal
government from applying the regulation against a Michigan based adoption agency because the regulation likely
violates the Religious Freedom Restoration Act).
2
See Benjamin Hardy, In Arkansas, One Faith-Based Group Recruits Almost Half of Foster Homes, The Chronicle
of Social Change (Nov. 28, 2017), https://bit.ly/2MvEUcI; see also Natalie Goodnow, Faith-based Adoption
Agencies are Too Valuable to Shut Down, The Hill, https://bit.ly/2OIxuFY (“Focus on the Family helped cut in half
the number of children in Colorado waiting to be adopted.”).
3
New York for example requires that “in the care, protection, adoption, guardianship, discipline and control of any
child, [the child’s] religious faith … be preserved and protected.” N.Y. Soc. Servs. Law § 373(1-4) (McKinney,
2019).

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 Proponents of the 2016 regulation, which the proposed rule would amend, argue
that its stringencies are necessary in order to prevent invidious discrimination. Such an attitude is
well-intentioned, but deeply misguided. What may at first seem to be displays of invidious
discrimination, are in fact innocent expressions of religious faith. This letter will highlight two
such situations. Given that fact, the 2016 regulation unnecessarily interferes with the good work
done by religious adoption and foster-care agencies. The proposed regulation would ameliorate
this misplaced burden and benefit religious charities and the children they serve.
Some religious foster-care or adoption agencies may choose to work exclusively with
parents belonging to their own faith.4 Proponents of the 2016 regulation would describe this
choice as invidious discrimination based on religion. But that view misinterprets religious
charities true motivation. These agencies do not prefer member of their own faith based on
animus toward other religions; rather, they are acting based on an entirely understandable
devotion to their own faith community.
The bonds between members of the same faith are forged based on shared religious
beliefs; they do not reflect hatred of outsiders. Members of religious communities share a
common view of the conditions necessary for human flourishing with their coreligionists. It is
therefore not surprising that members of such communities would want to place children in
homes that provide for such flourishing—that is, within their own community. In fact, they
consider doing so as being necessary to fulfill their moral and legal obligations to act in the best
interest of the children in their care.
This phenomenon is not new, nor is it limited to Christian agencies. During the Cold
War, Jewish adoption agencies in America sought to place Russian Jewish children fleeing from
Soviet persecution in Jewish homes. It was an act of religious solidarity and preservation, and no
reasonable person could view it as an act of bigotry against non-Jews.
In light of our historical experience, Jews have a unique insight into the dangers of
ascribing bigoted motives to groups that are religiously distinct from the surrounding culture.
Often, anti-Semites distorted our allegiance to our faith as hatred of our neighbors. This odious
accusation has always been false when it was leveled at Jews, and it is equally false when it is
ascribed to Christian (or other faith-based) adoption agencies who limit their services to their co-
religionists.
Consider the controversy surrounding Miracle Hill Ministries, a South Carolina based
ministry that offers foster-care related services. Miracle Hill’s plight illustrates the potential
harms that may occur when the government conflates religious solidarity with invidious
discrimination. The ministry nearly lost its funding and licensing because it restricted its services

4
Howard Slugh and Mitchell Rocklin, Religious Solidarity is Not Invidious Discrimination,
NATIONAL REVIEW (Nov. 6 2018) https://www.nationalreview.com/2018/11/christian-foster-
care-service-religious-liberty/; Rabbi Mitchell Rocklin and Howard Slugh, The ADL is Wrong:
Solidarity is Not Bigotry, THE JEWISH PRESS (NOV. 16, 2018)
https://www.jewishpress.com/indepth/opinions/the-adl-is-wrong-solidarity-is-not-
bigotry/2018/11/16/
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to Christian parents. Miracle Hill does not place foster children in homes; it merely provides
services to parents as they work through the process of becoming foster parents and raising foster
children. The ministry referred a Jewish woman who sought its services to another agency
because it only offered its services to coreligionists. The woman, and many others mistook this
act of religious solidarity for bigotry. We understand why the potential Jewish foster parent felt
frustration, and no one should make light of her situation. But Miracle Hill was motivated by the
special bond it shares with its fellow Christians, and not by animus toward Jews or any other
group.
The Department has no interest in using the awesome power of the federal government to
weaken those bonds. And in any event, if the government tried to do so, the ministry would cease
offering foster-care services. An ill-advised attempt to treat religious solidarity as bigotry would
achieve nothing other than inflicting unnecessary harm on vulnerable foster-parents and children.
Miracle Hill Ministry was saved by a last-minute exemption, but its peril highlights why the
existing regulation must be reformed. Religious solidarity is not bigotry--the proposed rule is
consistent with that elementary truth; the current rule is not.
Proponents of the 2016 regulation may also mistakenly identify invidious discrimination
in cases where agencies seek to place children in homes that maintain the same religious ideals
as either the children, the children’s birth parents, or the agency itself. This situation is distinct
from the situation we previously discussed where an agency prefers members of its own faith. In
this case, the agency is looking at the behavior and practices of the parents rather than their
membership in a particular faith.
Religious adoption agencies, like all other adoption and foster-care agencies, recognize
that they are required to act in the best interest of the children in their care. For religious
agencies, this obligation may require selecting a family that they deem best suited to provide for
the child’s religious and spiritual flourishing. For example, it would be eminently reasonable for
an Orthodox Jewish adoption agency to seek to place a child, who had previously been raised in
an Orthodox family, in an Orthodox Household.
The Orthodox agency would view itself as acting in the best interest of the child by
placing him in a home where he would continue to observe the laws of Kosher, the Sabbath, and
holiday observances in an Orthodox manner. It would not be sufficient for the agency to merely
ensure that the child would be placed with Jewish parents. The agency would have to consider
the prospective parents’ religious beliefs and practices. The Orthodox agency would not be
making this choice because of animus toward non-Jews or even toward Conservative and
Reform Jews. Instead, the Orthodox agency would be motivated by its understanding of such a
child’s best interest.
In cases where a child is too young to have developed his own religious beliefs, a
religious agency’s beliefs will affect its determination regarding the best environment to promote
a child’s flourishing. For example, an Orthodox Jewish agency would likely believe that Jewish
children would benefit from being placed with Sabbath observant parents. This is because the
agency itself believes that Sabbath observance is important to Jewish people’s well-being. In

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such a case, the agency is motivated by its interest in serving the children in its care and not out
of any kind of animus.
Agencies have additional reasons to consider prospective parents’ religious adherence in
cases where a child has already developed his own religious beliefs. There are many stresses and
difficulties associated with adoption. Agencies understandably seek to avoid creating a crisis of
conscience for a child by placing him in a home that does not follow or likely even understand
his religious practices and ideals. It would be extremely difficult for a child to maintain an
Orthodox Sabbath or Kosher observant life in a home where the parents did not follow or
understand such observances. It is commendable for an adoption agency to avoid placing
children in such a difficult circumstance.
Agencies that place children into homes that share their religious ideals can provide
mundane benefits in addition to spiritual ones. Adoption can be a time of intense trauma for a
child as he tries to acclimate to a new and unfamiliar home. By assigning a child to a family
compatible with his preexisting religious principles and practices, an adoption agency aims to
minimize the ways in which the child will find his new household unfamiliar and maximize his
opportunity to find it comforting and welcoming.5 Conversely, breaking the bonds of religious
community may disrupt a child’s “social networks with peers and adults, moral directives, and
[affect his] coping strategies.”6

Different faiths have different views regarding what environments are best suited to
enable a child’s spiritual flourishing. But faith-based agencies do not engage in invidious
discrimination when they genuinely seek to advance that interest. In the most controversial cases,
religious agencies motived by this interest will decline to place children with same-sex parents.
That case may be more divisive than an Orthodox agency seeking to place an Orthodox child in
an Orthodox home, but the principles are the same.
The issue of same-sex marriage is one of the most highly charged and polarizing issues in
America today. But it is a simply not true that all objections to same-sex marriage are the result
of invidious discrimination or bigotry. In Obergefell v. Hodges, the Supreme Court recognized
that the view that same-sex marriage violates religious precepts “has been held—and continues
to be held—in good faith by reasonable and sincere people here and throughout the world.”
Religious adoption agencies who hold that belief and favor placing children with parents who
share it, are not motivated by bigotry.
Under the 2016 regulation, faith-based agencies who favor prospective parents of their
own faith, or those who comport with their religious ideals may be prohibited from receiving
federal funding. The proposed regulations would eliminate those unnecessary restrictions and
simply prohibit recipients of funding from violating federal anti-discrimination statutes. The
proposed rule does not give anyone a license to discriminate, it merely reinstates traditional non-

5
See Jason D. Brown et al., Benefits of Cultural Matching in Foster Care, 31 Child. & Youth Servs. Rev. 1019,
1022 (2009) (“A sense of safety and comfort was promoted when a child was in a family where beliefs were
shared.”); see also id. at 1023 (“[P]articipants in the study also reported that having common … family customs
were very helpful to ease the transition into the home for both the child and foster family.”).
6
Jill Schreiber, The Role of Religion in Foster Care, NACSW (Nov. 2010), https://bit.ly/2Mvkfqx.

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discrimination law. We maintain that the behaviors outlined above do not violate the federal
statutes referenced in the proposed rule and therefore, under that rule, religious agencies would
be able to serve needy children while following their consciences. We believe that the agency
should adopt the proposed regulation in order to serve the best interests of vulnerable children
while respecting American’s tradition of honoring religious liberty.

Sincerely,
Howard Slugh,
General Counsel