WALTER OLSON, CATO INSTITUTE
On Friday, the Department of Health and Human Services proposed to rescind some regulations issued in the final days of the Obama administration that required recipients of HHS program funds to observe nondiscrimination on the basis of sexual orientation and gender identity.
The move, which now enters a public comment period, is being covered in the press as an issue of religious accommodation: should church-affiliated agencies be allowed to participate in federally funded adoption and foster care placements even if they decline to serve same-sex couples as clients? And that is indeed one of the hotly contested issues.
But it is worth a moment to examine how the latest HHS initiative might also be grounded in two other values, the rule of law and pluralism, including that characteristically American contribution to pluralism known as federalism.
From the start, the Obama regulations had a problem, which was that they proposed to enforce as regulation a body of federal law that… doesn’t exist. Congress has had many chances to attach funding strings of this sort requiring LGBT nondiscrimination of federal aid recipients. It hasn’t done so.
Likewise, the Supreme Court could have taken some of the principles involved in Obergefell and run with them to develop follow-on doctrines about government expenditures. It hasn’t. So on what basis does a federal department begin enforcing such rules anyway? Because appointees decide it would be a nice idea? (The rules apply to a range of HHS programs including elder care, refugee resettlement, youth services, and others.)
As I emphasized in my remarks at Cato’s conference on these topics last year, adoption has flourished in the United States in part because there is no centralized national legal regime governing it. Instead, the tone has been “relatively decentralized and pluralist,” with a “wide variety of both private and public actors helping to match children with families.”
That leaves room for, at present, a wide range of local approaches; some states and localities, like Massachusetts and Philadelphia, enforce strict anti-discrimination rules even if that means that some long-established religious agencies that are proficient at their jobs drop out. Other states and localities are highly accommodating to religious objectors. The Obama rules do not quite manage to impose uniformity since some corners of the child welfare world still escape the federal dollar, but they are a big step in that direction.
Then there is the question of what is in the best interest of kids needing placement. Both sides express sincere interest in this, but the arguments are often made by simple assertion. Quoted in this CNN account, for example, an officer with the Family Equality Council says rescinding the Obama rule will “allow child-placing agencies to reduce the pool of qualified potential foster and adoptive parents.”
Yet opponents can counter by rewording that formula only slightly: leaving the Obama rule in place would reduce the pool of child-placing agencies that recruit and serve qualified potential foster and adoptive parents. (So far as I know, in every state there are agencies that participate in public adoption and foster care placement that are happy to work with gay parents.)
Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies. His books include The Rule of Lawyers, on mass litigation, The Excuse Factory, on lawsuits in the workplace, and most recently Schools for Misrule, on the state of the law schools. His first book, The Litigation Explosion, was one of the most widely discussed general-audience books on law of its time. It led the Washington Post to dub him “intellectual guru of tort reform.” He blogs at Overlawyered.com.