Lawsuit challenging discrimination against same-sex foster parents can proceed

GREENVILLE, SC – A lawsuit challenging discrimination against married same-sex foster parents can proceed, a federal judge has ruled.

The lawsuit, Eden Rogers and Brandy Welch vs. United States Department of Health and Human Services et al, was filed in May 2019 in federal court in South Carolina. Burnette Shutt & McDaniel co-founders M. Malissa Burnette and Nekki Shutt are on the team of attorneys representing the Greenville couple.

Rogers and Welch filed the suit after South Carolina’s largest contract foster agency refused their application to foster parent.

Three organizations backing the lawsuit – SC Equality, Lambda International and the ACLU of South Carolina – believe that a waiver allowing Miracle Hill Ministries to discriminate based on religion and sexual orientation is unconstitutional. The lawsuit asks that the waiver end and that future such waivers be prohibited.

In an order filed Friday, U.S. District Judge Timothy M. Cain ruled that the claim of discrimination based on sexual orientation can proceed to trial.

Miracle Hill Ministries, which is not part of the lawsuit, is a private, not-for-profit organization that places foster children only with parents who are members of a Christian evangelical church and who are heterosexual. Miracle Hill accepts state and federal money for its work. Ordinarily, agencies receiving federal money cannot discriminate based on religion, race, sexual orientation, age and other factors.

However, South Carolina sought a waiver for Miracle Hill and received it from the U.S. Department of Health and Human Services. Agencies in other states have received similar waivers.

Shortly after Miracle Hill received the waiver, Rogers and Welch applied to be foster parents through Miracle Hill. They disclosed that they are a same-sex married couple. Miracle Hill immediately rejected their application.

Dreams of helping foster children

Rogers and Welch have been married for four years and have two daughters of their own. They bought a bigger home in hopes of being able to foster children in need. They said they’re excited that the case is moving forward.

“There are many children in South Carolina who need foster homes, and we remain hopeful that couples like us can provide children a lovely home without being rejected or discriminated against.”

This is a pro bono case for Burnette and Shutt, who are donating their legal services. When they won the case that paved the way for marriage equality in South Carolina, they donated all legal fees their clients were awarded to SC Equality. The organization’s mission is to secure civil rights for LGBTQ South Carolinians.