Pro Bono Clients’ Claims for Establishment Clause Violations, Sexual Orientation Discrimination Proceeds to Discovery

On May 8, 2020, Judge Timothy Cain of the United States District Court for the District of South Carolina denied in part motions to dismiss the complaint of Cravath pro bono clients Eden Rogers and Brandy Welch. The court held that Eden and Brandy’s claims for violations of the Establishment Clause of the First Amendment and for equal protection violations based on sexual orientation discrimination could proceed to discovery.

Eden and Brandy, a lesbian couple from South Carolina, applied to foster a child through Miracle Hill Ministries, the largest state‑contracted, government‑funded child placement agency (“CPA”) in South Carolina. Miracle Hill denied Eden and Brandy’s application because they are a same-sex couple and because they do not ascribe to Miracle Hill’s evangelical Protestant Christian religious beliefs.

In 2018, the South Carolina Department of Social Services (“SCDSS”) discovered that Miracle Hill was turning away prospective foster parents who failed to meet its religious criteria, which also disqualify families headed by same-sex couples regardless of their faith. At the time, federal regulations prohibited CPAs that receive federal funds from discriminating against prospective foster parents on the basis of, among other characteristics, their religion or sexual orientation. SCDSS notified Miracle Hill that it would revoke Miracle Hill’s CPA license unless Miracle Hill ceased its discriminatory practices. South Carolina Governor Henry McMaster intervened on behalf of Miracle Hill, however, and ordered SCDSS to permit all faith-based CPAs in South Carolina to discriminate against potential foster parents based on religion. He further asked the Department of Health and Human Services (“HHS”) to exempt Miracle Hill from the federal non-discrimination requirements, which exemption the HHS ultimately granted. HHS since has moved to rescind the relevant non‑discrimination regulations altogether.

With the assistance of Cravath, the American Civil Liberties Union (“ACLU”), ACLU of South Carolina, Lambda Legal and the South Carolina Equality Coalition, Eden and Brandy sued Governor McMaster and HHS, as well as other federal and state officials and entities. Eden and Brandy allege that, by authorizing and funding Miracle Hill’s discriminatory practices, the defendants violated the Establishment Clause of the First Amendment and Eden and Brandy’s equal protection rights on the basis of their religion and sexual orientation. Thereafter, the defendants moved to dismiss the complaint, arguing that Eden and Brandy lacked Article III standing and had failed to state a claim for the defendants’ violations of their constitutional rights.

While Judge Cain agreed that Eden and Brandy could not maintain that the defendants violated their equal protection rights on the basis of their religion, he determined that their First Amendment claim and equal protection claim based on sexual orientation discrimination should proceed. Judge Cain found that Eden and Brandy had established Article III standing to bring their claims. Judge Cain also agreed with Eden and Brandy’s arguments that the complaint alleged a violation of the Establishment Clause because the defendants endorsed Miracle Hill’s religious views and excessively entangled government and religion by funding Miracle Hill’s religious discrimination. Finally, Judge Cain agreed that Eden and Brandy adequately alleged an equal protection violation based on their sexual orientation because Miracle Hill’s policies treated them differently from similarly situated couples and the defendants had failed to provide a rational basis for their actions.

The Cravath team is led by partner Peter T. Barbur and includes practice area attorney Katherine D. Janson and associates Allison C. Davido, Clay H. Greenberg, Derek K. Mong, Carolyn R.C. Young and Miranda Li. Cristopher Ray also worked on the matter.

The case is Rogers v. United States Department of Health and Human Services, No. 19-cv-01567 (D.S.C. May 8, 2020).