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H.R. 1750: Child Welfare Provider Inclusion Act of 2021

Are those providers’ religious convictions, which dictate that they discriminate against same-sex couples, a valid reason for them to be denied federal money?


According to the nonprofit Movement Advancement Project, 25 states plus Washington, D.C. ban adoption or foster care agencies from discriminating based on sexual orientation or gender identity, such as refusing to place children with same-sex couples.

While these are mostly blue states, the list also includes a few red states such as Iowa, Kentucky, and West Virginia.

But is this constitutional? The pending Supreme Court case Fulton v. City of Philadelphia concerns the group Catholic Social Services, which sued Pennsylvania’s largest city for infringing on their First Amendment rights, arguing that their freedom of religion allowed them to deny their services to same-sex couples.

Both a federal district court and appeals court ruled in Philadelphia’s favor, but the conservative Supreme Court heard oral arguments in November 2020 and their decision is pending.

What the legislation does

The Child Welfare Provider Inclusion Act would ban any state or locality that receives federal adoption assistance funding from discriminating based on an organization’s religious beliefs. In other words, they would *have *to allow organizations that don’t place children with same-sex couples who want to adopt.

(A state that didn’t receive any federal adoption assistance, though, would still be free to institute such a ban on such organizations.)

The House version was introduced on March 10 as H.R. 1750, by Rep. Mike Kelly (R-PA16). The Senate version was introduced the same day as S. 656, by Sen. Tim Scott (R-SC).

What supporters say

Supporters argue that the legislation prevents the government from discriminating by religion, which they say violates the First Amendment that lies at the heart of this country’s governing principles.

“Several state and local governments are requiring faith-based adoption agencies to choose between helping kids and violating their religious faith,” Rep. Kelly said in a press release. “This blatant attack on the First Amendment makes it even harder for children to find loving homes. By passing this legislation, Congress can stand up for kids and defend religious liberty.”

“In South Carolina and across the country, faith-based foster care providers support the 400,000 children in our foster care system who — through no fault of their own — have nowhere else to go,” Sen. Scott said in a press release. “At a time when religious freedoms are under assault, the [bill] is a necessary protection for those who are living according to their convictions.”

What opponents say

Opponents counter that states allowing child welfare providers to engage in such decisions is morally wrong.

“To say that we can’t place children because they’re in gay families, and therefore they have to age out of the foster care system and not have a loving home, is cruel to these children,” Democratic Del. Mark Levine of Virginia said.

“Gay families happen to care — and to try to care — for the children that are most unwanted, to be honest: children with disabilities, children with mental health issues,” Del. Lavine continued. “Gay families come to the table seven times more often than their percentage of the population, because gay families actually care about these children that aren’t wanted by a lot of straight families.”

Levine was speaking in favor of a Virginia bill to end the state’s policy allowing adoption and foster care agencies to deny service to same-sex couples. The state House approved it 53–43 in February, but the bill has not yet received a vote in the state Senate.

Odds of passage

The U.S. House version of the Child Welfare Provider Inclusion Act has attracted 12 cosponsors, all Republicans. It awaits a potential vote in the House Ways and Means Committee.

The U.S. Senate version has attracted 24 cosponsors, all Republicans. It awaits a potential vote in the Senate Finance Committee.

Odds of passage are low in the Democratic-controlled Congress.

Last updated May 5, 2021. View all GovTrack summaries.

The summary below was written by the Congressional Research Service, which is a nonpartisan division of the Library of Congress, and was published on Mar 10, 2021.

Child Welfare Provider Inclusion Act of 2021

This bill generally prohibits the federal government, states, tribal nations, or localities from discriminating or taking adverse action against a child welfare provider that declines to provide services due to the provider's sincerely held religious beliefs or moral convictions. However, government entities may still take adverse action against a provider that declines to provide adoption or foster care services based on race, color, or national origin.

The Department of Health and Human Services must withhold a portion of federal funding for family services and child welfare activities from a government entity that discriminates against a child welfare provider in violation of this bill. Child welfare providers may also sue the government entity for such discrimination. A prevailing provider may recover reasonable attorney's fees and costs.

Furthermore, government entities that accept certain federal funding for family services and child welfare activities must waive sovereign immunity as a defense to lawsuits brought under this bill. (In many cases, sovereign immunity shields states, territories, tribal nations, and some localities against private suits.)