Litigation Update: Rogers v. HHS & Maddonna v. HHS

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Chayila Kleist:  Hello, and welcome to this Federalist Society webinar call. Today, December 11, 2023, we’re delighted to host a Litigation Update on Rogers v. HHS and Maddonna v. HHS—two cases concerning child welfare, a religious non-profit foster care ministry and religion in the public square.

 

      My name is Chayila Kleist, and I’m an Assistant Director of Practice Groups here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts of today’s program, as The Federalist Society takes no position on particular legal or public policy issues.

 

      In the interest of time, I will keep our introductions of our guests today very, very brief, which might be to do them a disservice. But if you’d like to know more about either of our esteemed speakers, please go feel free to visit regproject -- sorry, fedsoc.org, where you can check out their impressive full bios.

 

      With that, today, we are fortunate to have with us Miles Coleman, who is a Partner at Nelson Mullins Riley & Scarborough LLP, where he practices in the areas of appellate law, business litigation, and First Amendment law. He’s an NFL Players Association certified agent and a member of The Federalist Society’s Religious Liberties Practice Group executive committee. He also represented both the governor of South Carolina and the South Carolina Department of Social Services in these cases, which passed most pertinent to the discussion today.

 

      Also joining us today as our moderator for today’s conversation is Daniel Blomberg, who serves as Vice President and Senior Counsel at the Becket Fund for Religious Liberty. Before joining Becket, he clerked for Chief Judge Alice M. Batchelder at the U.S. Court of Appeals for the Sixth Circuit and served as litigation counsel with the Alliance Defending Freedom. And I will leave it there.

 

      One last note, and then I’ll get off your screens. Throughout the webinar, if you have questions, please submit them via the question-and-answer feature found at the bottom of your Zoom screens so that our -- they’ll be accessible when we get to that portion of today’s webinar. With that, thank you all for joining us today. Mr. Blomberg, the floor is yours.

 

Daniel Blomberg:  Thank you, Chayila. So let me just briefly provide a little bit more introduction to our expert today. Mr. Coleman is sought-after counsel in First Amendment and other types of constitutional cases. He’s represented Catholic, Protestant, Muslim, Jewish, amici in cutting-edge litigation before the U.S. Courts of Appeals and the U.S. Supreme Court.

 

In law school, he was one of the first to ever win the University of South Carolina’s internal moot competitions—both of them: the Kate Bachman Memorial Moot Court Competition and the J. Woodrow Lewis Moot Court Competition, judged by the South Carolina Court of -- Supreme Court.

 

And Mr. Coleman is also the recipient of the Compleat Lawyer Award from the University of South Carolina, which is its highest award for outstanding civic and professional accomplishments. Recipients are individuals who have made significant contributions to the legal profession and exemplified the highest standards of professional competence, ethics, and integrity. And I think you’ll see in our conversation today how that award was appropriately given to Mr. Coleman.

 

To provide the background for our conversation for the two cases that he was lead counsel on, I think we need to step back and look at the broader context of religious social services in the context of foster and adoptive care. Religious organizations have been involved with foster and adoptive care in our country for over 200 years. In many ways, they were the leaders in this space before the government ever got involved, and they continue to be extraordinarily valuable partners to government entities in the provision of this type of care.

 

They provide a unique, supportive role in a variety of different contexts. So, for instance, religious families are reportedly three times more likely to seriously consider providing foster care and two times more likely to actually adopt. Eighty-two percent of families in one study said that the faith and church support was an important factor in successful fostering. It’s what allows people to do it effectively. And families who have religious support to provide foster care often last longer—years longer on average—because of that support.

 

And the reality is that the government needs all the help it can get. Unfortunately, kids in foster care are growing; the numbers are growing. And oftentimes, in many states around the country, the amount of foster families, families available to take in foster children, are decreasing.

 

Yet unfortunately, some states have started using nondiscrimination law in an appropriate manner to box out the religious groups that have been involved in this kind of work for, again, literally hundreds of years.

 

So, for instance, in 2006, Massachusetts stopped partnering with religious providers. And one year later, the percentage of kids aging out of the foster care system there increased by 50 percent and, to my knowledge, still has not returned to the pre-2006 levels that it enjoyed before then. In 2011, Illinois stopped partnering with religious foster care providers. And between 2012 and 2019, it lost over 5,000 foster homes—the biggest loss of any state that’s recorded this kind of data.

 

And that brings us to South Carolina, where Governor McMaster was worried that a federal regulation could have similar effects on South Carolina’s foster care program and require it to end its partnership with local religious ministries that have been important partners in this space.

 

And despite a unanimous Supreme Court opinion in Fulton v. City of Philadelphia—which required the city to stop discriminating against Catholic social services from providing foster care assistance—groups like the ACLU had come to South Carolina and were arguing that South Carolina had to exclude religious partners, like the award-winning Miracle Hill ministry in upstate South Carolina.

 

And so this type of situation raised all sorts of interesting legal issues, including the kinds of issues that have been making headlines across the country: so the question of Fulton and what it means, the unanimous opinion there from the Supreme Court and how these cases could possibly be any different and then also issues arising out of 303 Creative and the Kennedy decision, headlines alleging that these were in some ways fake cases. And there are aspects of this case which show how untrue it was in that context and how comparatively true it was here.

 

So without any further ado, Miles, can you kind of set the table and give us a better sense of what was happening in these specific cases?

 

Miles Coleman:  Yeah. So lots to drill down on there, but we’ve got some time. Let me just start by kind of giving a factual groundwork, I guess, give a factual lay of the land.

 

So, in South Carolina—like in nearly every other state, in fact, every other state—every year, there are thousands of children who, for whatever reason, have to be removed from their family of origin. In South Carolina, that number is typically between 3,000, 4,000 distinct children each year. Some of them may stay in foster care for a few days, some for a few weeks, some for a year, or more. But in each of those instances, the state is the one who has legal custody of those children, and the state attempts to place them in a foster home.

 

Historically, across the country, that was done often using residential facilities, almost dormitory style facilities. Of course, more recently in South Carolina and across the country, states are moving away from that to a better, healthier model, where children are placed in individual homes.

 

The state licenses individuals or families as foster parents, and only the state licenses those individuals. The state places foster children in those homes, and only the state can place children in those homes. The majority of people in South Carolina who want to become a foster parent or who are already licensed as foster parents work directly with the state. There’s no private entity or private agency. And I, in some ways, hesitate to use the word “agency” because it almost implies governmental but private agencies. The majority of prospective and current foster parents work directly with the state, and the state places children directly into their homes.

 

 

Now, that said, there are 27 private entities in South Carolina, including 18 in what we would refer to as the upstate. If you think of the state as the lower part of the state, anchored by Charleston and up to Myrtle Beach, then there’s the central part of the state with Columbia in the middle, and then the upstate with Greenville and the Spartanburg region, in the upstate, there’s 18 private foster care entities or child-placing agencies—CPAs as they’re known.

 

So here we’ve got the state with between 3 and 4,000 foster children each year. We’ve got the majority of parents working directly with the state and a subset of the group—less than half of parents who work with one of these private entities—of which there’s 18 in the upstate.

 

One of them, Daniel, you already mentioned, Miracle Hill Ministries is a faith-based Christian social services agency. They do a variety of social services work, including homeless shelters, addiction recovery centers, homes of refuge for women who are escaping from trafficking or from abusive situations, and foster care. They are one of the longest serving CPAs—or child-placing entity -- child-placing agencies private entity in South Carolina. And as you mentioned, they’ve won literal awards for their work.

 

But they’re not the only one. There are many other options within driving’s distance. In fact, the discovery in this case revealed that some of the plaintiffs would have to drive past other CPAs to get to Miracle Hill if they were going physically. But I digress. Let me get back to the sort of the groundwork.

 

So here we have Miracle Hill that for many, many years has been serving children and adults in other contexts in both their service, their ministry to people experiencing homelessness, to people experiencing addiction, to women trying to escape from abusive or trafficking situations, or to children in foster care.

 

Miracle Hill serves anyone in need who walks through the door, regardless of race, color, ethnicity, age, disability, handicap, veteran status, sexual orientation, gender identity, or any other factor. If you need a friend in the upstate of South Carolina, you’ll find one at Miracle Hill whether you’re an adult who’s cold, who’s hungry, who doesn’t have a place to stay, or whether you’re a child who needs a loving family until you can return to your own.

 

But because Miracle Hill is a Christian ministry—a faith-based ministry—in some contexts, they will only work with those volunteers and employees who share their faith. So I say “some contexts” because regardless of your faith, your creed, your religion, or any other factor, if you want to go down to the homeless shelter and help ladle soup for the hungry, if you want to give out blankets or jackets to people on a cold night, you can do that. If you want to work in some context with foster children, you can do it regardless of your ability to affirm Miracle Hill’s doctrinal statement.

 

But Miracle Hill chooses to partner only with parents, foster parents and foster care employees who affirm Miracle Hill’s statement of faith. Why? Because Miracle Hill sees their foster care ministry as that. It’s a ministry. It is compelled by their faith. They see it as an exercise of their faith. They’ll point you to verses in the Christian Bible that they feel obligate them to do this.

 

So to them, it’s more than just being a good neighbor. It’s more than just being a good citizen. It’s more than just helping children in need. Although those are incredibly compelling reasons of themselves, to Miracle Hill, it is an exercise of their faith. It’s compelled by their faith, and they want to partner with foster parents and foster employees who share that mission, who share that motivation and those beliefs.

 

2017 January, the final week of the Obama administration, federal HHS amended a federal regulation that controls how certain federal dollars—Title 4(e) of the Social Security Act—flow down to states and then to subrecipients to take care of children in foster care. Title 4(e) of the Social Security Act still says for decades, has merely said that the money cannot be used in a way that discriminates on the basis of race, color, or national origin. And as noted previously, Miracle doesn’t do that. None of the foster care entities in South Carolina do that.

 

But January of 2017, HHS amended that to add religion and sexual orientation in the regulation. Obviously, the statute remains unchanged. Subsequently, in 2017, Miracle Hill was up for its annual review and re-licensure, as every CPA in the state does on an annual basis. And the state agency that administers these funds—Department of Social Services—looking through Miracle Hill’s submission paperwork, realized they have this policy working only foster parents who shared their doctrinal beliefs realized this is contrary to the new federal regulation and so reached out to Miracle Hill to say that in light of the federal regulation, the state could grant only a provisional license and needed Miracle Hill to come into compliance with this federal reg.

 

Miracle Hill subsequently reached out to Governor McMaster, who rightly, as he knew then, as the courts have found now, believed that the federal regulation was in fact infringing on Miracle Hill’s constitutional statutory rights. The governor issued an executive order directing DSS not to discriminate against DSS by withholding a license on the basis of religious belief.

 

The governor reached out to federal HHS to request a waiver or, in technical language, a deviation from the regulation. If you’ve had any experience with federal agencies, sometimes, those wheels grind slowly. And so a period of time went by—about a year—between the governor’s request and that deviation or waiver being granted.

 

Subsequently, HHS also issued what’s called a notice of non-enforcement, saying that they wouldn’t be enforcing the regulation to the extent it would conflict with or infringe on certain CPA’s religious or statutory freedoms. I should say constitutional or statutory freedoms of religion.

 

And then at some point shortly thereafter, two lawsuits were filed—which we’re here to talk about today—one brought by Amy Maddonna, and she was represented by Americans United for separation of church and state and then shortly thereafter, one brought by Ms. Rogers and Ms. Welch, who are represented by a combined grouping of Cravath, Swaine & Moore, the ACLU, the ACLU of South Carolina, Lambda legal Equality South Carolina, and local counsel.

 

Let me kind of stop there. That was a long run-on factual setup. But that kind of gets you from decades ago up until the filing of the lawsuit in 2019.

 

Daniel Blomberg:  So that brings in the question here about what exactly was the claim, right? We hadn’t gotten to Fulton yet and the decision there requiring equal treatment for religious organizations—those rights that you were talking about. So that may be this long-standing kind of conflict arising out of certain states, like Illinois and Massachusetts and such, and now the Obama administration.

 

That was ongoing. We hadn’t gotten the clarity from the unanimous Supreme Court about a lot of these kind of issues. But what was the injury? What was it that caused the plaintiffs in these two cases to sue?

 

Miles Coleman:  Yeah. So the alleged injury -- well, let me add a little bit more of how the actual interactions between the plaintiffs and Miracle Hill then that led to the claims.

 

But to give you sort of a preview, a foreshadowing, the alleged injury is that they were stigmatized by being politely told by one CPA that it wouldn’t be a good fit but offering to introduce them to a dozen others. So there’s essentially a stigmatic injury or essentially the hurt feelings of being declined.

 

And then secondly, alleged injury was that those who could not partner with Miracle Hill had access to fewer than all of the options. The argument would go, “Well, if I were a Christian or willing to sign Miracle’s statement of faith, then I could work with the state directly or with 18 private CPAs. But if I decline to or cannot sign Miracle’s statement of faith, then I can work only with the state directly or 17 other CPAs” and that that was allegedly a material prejudicial diminution of the options available.

 

Daniel Blomberg:  Just to clarify, you’re not saying that these are foster care children that are being denied by Miracle Hill or something like that. These are individuals who say they want to provide foster care services. And that’s the problem?

 

Miles Coleman:  Right, right. Yeah. To reiterate, Miracle Hill will work with any foster child that the state -- and again, keep in mind, the state is the sole entity that has authority to place a child into a foster home.

 

The CPAs, Miracle Hill, or the 26 others in the state merely help to facilitate once a child is placed to support the foster family. So the state is the only one doing the licensing; the state is the only one doing the placing. And anyone who wants to foster can apply directly to the state, or they have the option of going through a private entity. Yeah. So the point being that these are potential foster parents.

 

Now, I will note as well, I certainly can’t question the sincerity of the plaintiff, but I will note that the record reflects that over the entire course of this litigation, neither before the time that HHS’s waiver and notice of non-enforcement became public, neither before that time nor after have any of the plaintiffs made any effort to foster, or even to apply to foster, with the state or with any other private entity. Rather, after this was much in the news—at least in South Carolina and to some extent nationally within the foster community that HHS had granted this waiver—you’ve got these plaintiffs who, fairly shortly thereafter, reached out to Miracle Hill to inquire.

 

Both of them were politely, respectfully told by Miracle Hill in writing—so there’s record evidence of it—that Miracle Hill chooses only to partner with those who can affirm their statement of faith, asking if they could do this and, if they can’t, giving them a list of names and phone numbers and offering to introduce them to other CPAs.

 

I think it’s also noteworthy if we talk at least about the Rogers lawsuit—the one in which the plaintiffs were represented by the ACLU and the rest of that coalition—in the days after HHS announced the waiver, the ACLU was very publicly engaged in a Twitter solicitation for plaintiffs—again, the record evidence. We’ve got screenshots of it—reaching out, trying to find individuals who would be willing to apply to Miracle Hill and get rejected.

 

The plaintiffs attend a Unitarian Universalist church, which, in fact, hosted an interest meeting for potential plaintiffs to help them tee up this lawsuit. The ministers of that church—or I should say one of the ministers of that church—is herself a foster and adopted parent through another entity and advised these plaintiffs that they should go apply to Miracle Hill.

 

So you’ve got the very individual who knows of an alternative avenue by which she herself had been licensed as a Unitarian married lesbian woman. And she also knows and is hosting an interest meeting that Miracle Hill will not work with folks who are not Christians. And unitarian universalism, if you’re not familiar with it, holds a number of beliefs, or doesn’t hold a number of beliefs that are diametrically incompatible with Christianity and Miracle.

 

Nevertheless, you’ve got this individual encouraging two congregants—Rogers and Welch, a married same sex couple—to apply to Miracle Hill. They’re politely declined by Miracle Hill. And within minutes of getting that email back, they’ve forwarded on to their lawyers at the ACLU, Lambda, etc.

 

So again, I hope that the individuals involved in these lawsuits will in fact pursue the many other options that are available to them because, listen, children in foster care need more options, and there needs to be more parents involved. There’s always a shortage in every state. And in South Carolina, we could use more foster parents, and we want there to be more foster parents that reflect the absolute breadth and diversity of the state and of the children.

 

State DSS, again, the only one who can license, the only one who places children affirmatively, intentionally makes outreach to different communities, including communities of different orientation, different religions, different races, different parts of the state. So the state is seeking and welcoming a diversity of foster parents, and there’s options available. These individuals in this case, however, chose not to pursue the other options and instead bring a federal lawsuit against government master, the director of DSS, federal HHS, and a good handful of HHS officials.

 

Last thing I’ll say on this, and then I’ll wind down this question—because it was also a long run-on answer—but I think, Daniel, you asked both about the injury, which I mentioned a second ago, is that these parents were in some ways stigmatized by being politely told that there are other options that would be glad to work with them and that they had one less option than some others.

 

The claim, the legal claims were that by accommodating or by relieving a burden, by removing a burden from Miracle Hill as a Christian foster care entity, that by doing so, Governor McMaster and the other defendants had established Christianity as the official state religion of the state of South Carolina and therefore was a violation of the Establishment Clause. So it was alleged there was an equal protection claim as well that was dismissed fairly early on in one of the lawsuits. So it ended up just being an Establishment Clause case pretty much all the way through.

 

There was, as I said, always that equal protection claim but not much time and effort paid to that. And it was dismissed in part at the outset and in full at the conclusion of the case.

 

Daniel Blomberg:  So, just to recap briefly, you had a situation where the plaintiffs here had a number of other options to access foster care services and become foster parents in the state of South Carolina. And the only one they applied to and the only one they ever pursued was Miracle Hill.

 

Miracle Hill gave them the names and contact information—the alternative places they could go to foster care—to provide foster care. And instead of trying to provide foster care to needy children in South Carolina, they fought a federal lawsuit. As of the date of the lawsuit’s dismissal in September, had any of the plaintiffs ever tried to foster any other children in another agency?

 

Miles Coleman:  No. And to go back even chronologically, a little bit earlier than that, at the time of their depositions, all of the plaintiffs conceded under oath that they hadn’t done so, and that they realized that if they had, based on all the information in the record regarding the timelines, that if instead of or concurrently with or even after filing that lawsuit, if they had applied to be foster parents, they could, by the time of their depositions, have been fostering children in their homes right then, but they nevertheless hadn’t tried to.

 

And even then, when called on it, there was a good bit of time that went by between their depositions, a period of excessive a year—close to two years—at the end of the case. Even then, during that intervening time, none of them have sought to do so.

 

Now, again, I don’t want to question the sincerity of their desire to foster, and I hope that they do because the state needs more foster parents. But in this case, the facts are what the facts are. Let me note, too, that my canine co-counsel may be about to offer a few comments as well. If you hear a little bit of barking from underneath the desk, just please forgive, and we’ll carry on.

 

Daniel Blomberg:  On this point, though, just one other thing to follow up on. So the claim, I think that one of the claims, the primary legal argument you mentioned, was the Establishment Clause claim that by accommodating Miracle Hill’s religious needs in its provision of foster care services, the state of South Carolina was establishing a religion.

 

Presumably the state of South Carolina has done the same for any Jewish or Muslim or Catholic ministries that had asked for a similar accommodation. So those are all been establishments. Apparently, South Carolina would have established Protestant and Catholic and Jewish and Muslim and other faith groups.

 

What would be the effect? If the plaintiffs had won their case having never actually applied to provide foster care services, what would be the effect if Miracle Hill had been told, “No, we can’t accommodate you”? Would they have been excluded?

 

Miles Coleman:  Yeah, yeah. So that’s a great question, and it’s one you touched on a little bit with some of the existing empiricals from other states and in the past but that I can flesh out with specific information from this case. To the effect of it -- and what you pointed out was some of the statistics about the willingness of people of faith to foster to adopt as compared to the general population.

 

Now, to be clear, there is also evidence that shows that members of the LGBTQ community are also more likely than the general population to foster and adopt. But I’m not sure. I don’t think those numbers meet the same multiplier effects as the people of faith. But to be clear, both of those groups are statistically more likely than the general population. But what would the effect of it have been here?

 

We can look not just to the statistical data from other states. I know there’s been some reporting from Arkansas about agencies there and how many foster parents are particularly incentivized to become foster parents as a result of that. But here’s what I can tell you from the state of South Carolina is that, well, really two things, I guess. Let me start with the plaintiff’s position.

 

Their position—both in their pleadings, their expert discovery, their expert report and testimony—is that, again, going back to this idea of a stigmatic injury, their theory is that when a person is politely declined by one provider, that they are less likely to go on and apply elsewhere. Now, that’s their assertion; that’s their allegation. But there’s precious little evidence for it.

 

They get to that conclusion by looking at a number of different social science studies, reports, and theories and sort of daisy chaining them or island hopping from one to the next to the next to get to the conclusion—or I would say allegation—that when a LGBTQ person, or I suppose in this case, a Unitarian Universalist as well, is politely referred elsewhere. The allegation is they’re less likely to go elsewhere.

 

Notably their expert, Dr. Brodzinski (sp)—who is an incredibly well qualified social scientist. He has also served as the expert in the Obergefell case—in his deposition, conceded to me that there is, in fact, no study that actually directly supports that conclusion. That really is the chain of extrapolations and surmises that get to that conclusion. So that’s point one of what would the effects be.

 

There is no evidence—no direct empirical evidence either from the social sciences, from the reporting that’s been generated from, as you mentioned, other states, Massachusetts, Illinois—that indicates that closing down the faith-based providers will somehow increase the pool of foster parents.

 

As a footnote, just saying that out loud, it is, at just a very common sense level, sounds comically absurd, that by closing down providers, you’ll increase the number of foster parents. But that’s the theory, the plaintiff’s theory in this case. There’s no evidence of it. What is the evidence? Again, both. We can see it in other states, but let’s focus specifically on the record here.

 

Miracle Hill, at the time, three of their employees were deposed. At the time of those depositions, Miracle, I think, had 243 families with whom it worked, with whom it partnered, who had been licensed by the state as foster parents. Based on their direct and extensive knowledge, having worked with those families through the whole process, having worked with them while they had foster children in their home, their best estimate was that at least 50 percent of those families would no longer renew their foster license and their foster service if they couldn’t work with Miracle Hill as an agency of like faith.

 

Now, to be clear—and they clarified this—any of those families that at the time had a child, a foster child in their home, they’re not going to turn them out. But at least 50 percent of them, if they’d had a child, would have finished that placement until the child was able to return to its family of origin, and they would have told DSS, “We’re going to be finishing our service now.”

 

Now, keep in mind, this is a group whose foster parents stay in the game longer, who serve more children, who take fewer breaks, who take fewer rests. So, clearly, the loss of any number of those people, whether it’s all 243 of the families or just half of them or something in between, would be detrimental to children's foster care and to the state.

 

So all that to say, it would have been unhelpful. It would have shrunk the pool of available foster homes if Miracle Hill were no longer able to keep operating. The mechanism for that would be Miracle Hill can no longer be licensed by the state as a CPA. It can no longer be contracted with the state—both of which are required for the state to be able to place children into homes that are supported by a CPA—net loss to the pool of foster parents and to children who need those parents, right?

 

Net loss, if you close down miracle or other CPAs -- as you said, you can see it in Massachusetts with Catholic Social Services, in Illinois, later with Catholic Social Services or Catholic Charities, I believe in Illinois was the name of it, and you would have seen it here, too: undisputed record evidence.

 

Daniel Blomberg:  So that is kind of our practical background, what the facts were, and we’ve got a preview now that we -- we know where the case is going; we know what the Court is going to do. And I’m really interested to hear you tell us more about the kind of emerging establishment clause jurisprudence because the Supreme Court has helped us realize that the old Lemon test is no longer applicable. And the test that is applicable is one that looks to the history and application of the Establishment Clause and the Founder’s understanding of establishment.

 

So before we get to that, one of the things that you just mentioned was the deposition with a leading national expert on issues related to foster care, families and things of that nature. And I think you mentioned earlier, there’s a fairly sizable contingent coalition of lawyers that were involved in these cases against the state of South Carolina and ultimately against Miracle Hill, even though, as I understand, Miracle Hill wasn’t a party. Talk to me about that. Talk to me about that experience of that litigation and that process. What does it look like?

 

Miles Coleman:  I have to smile a little bit because it’s a rare day when you’re a lawyer at a thousand-lawyer firm and you’re representing the state—or at least an apex state official—and you feel like you’re David in the David versus Goliath fight, right? Typically, you don’t think of a big firm or somebody referencing the state as being like the little guy in the fight. But I will tell you, that is what, in fact, the effect of it through much of the litigation.

 

I mean, just to give you a little bit of a sense of it, I think there were maybe 15 depositions in the case that I took or defended. And in nearly all of them, the state defendants were represented by yours truly, and the plaintiffs had between 8 and 10 lawyers on -- they were typically Zoom, right? A lot of this happened during the COVID and post-Covid years. Between 8 and 10 lawyers on the Zoom participating, obviously, one lawyer handling the questioning and the rest providing, I’m sure, instant message feedback and commentary to the interlocutor -- during the course of the deposition.

 

Just to kind of give you a few other anecdotes, literally on the eve, the night before the first deposition of the case, the first deposition was going be to a 30(b)(6) deposition of an employee of the South Carolina Department of Social Services whose role is overseeing the licensing of foster care, private foster care providers, CPAs.

 

Literally, her depositions were supposed to start at 9:00 in the morning on, I think, a Tuesday—maybe a Monday. Ten hours before, at like 10:00 p.m. the night before, the Cravath lawyers dumped 13,000 pages of discovery that they had gotten through third-party subpoenas and had been collecting, to be clear, over a period of months. They had been getting these documents on a rolling basis from the third-party subpoena recipient over a period of three, four, five months and had just sat on them all, saved them all up until literally the night for the deposition and then dumped them on us and then criticized us for saying that was discovery gamesmanship.

 

Fast forward. Then two years later, we’re reaching the end of discovery. And again, keep in mind this has been—it wasn’t quite two years, but it was close to it—close to two years of discovery, tens of thousands of pages, extensive motions practice about privilege logs, and trying to take the governor’s deposition, which we successfully quashed, right?

 

So this wasn’t discovery that happened in a flash. It wasn’t something that didn’t get paid much attention to. It was 18, 19, 20 months-worth of hard-fought discovery, reached the close of discovery, and shortly after, the plaintiffs allegedly discover a new witness with new testimony, something they’d never thought of before. But maybe there’s other CPAs who only work with Christians as if they’d only just thought of this for the first time after two years—which that literal point was a frequently discussed topic and then moved to reopen discovery to issue further third-party subpoenas, trying to depose lots of other CPAs. So then we ended up in motions practice about that.

 

So all that said, literally, from start to finish, it was sharp elbowed maybe. Let’s put it that way. And ultimately, the record we ended up with—again, keep in mind it was a lengthy discovery process. It was extensive. The record we ended up with was, in fact, what I’ve already described that there are 27 other CPAs in the state, lots of options. DSS isn’t aware of any other CPA that works with less than everybody.

 

Again, I won’t repeat everything we’ve just discussed -- but that Miracle Hill, in fact, accommodating Miracle Hill enhances and expands the pool of foster parents. It doesn’t diminish it. There’s other options for the plaintiffs. They were aware of them. They didn’t take them. It is a lengthy and, at times, fractious discovery process. But once it finally concluded, we had a great and robust record that we could put in front of the trial court and I think left no questions unanswered, no material facts disputed.

 

I’ll say one last brief anecdote while we’re talking about discovery, and you had made the point earlier. I think it is important and is easy to forget now, right? Just like probably as we look back on something you have various great conflicts and battles of the past. We assumed that the Allies were going to win in World War II because we know that they did. But at the time, it was not a certain thing.

 

Looking back now, of course, we assumed that Fulton was going to get decided the right -- that Fulton was even going to occur and that cert would be granted and that it would be decided the way it was. Kennedy v. Bremerton, that wasn’t even a glimmer in our eye at the time this case started. Listen. I know, Daniel, you’ve criticized the Lemon test as frequently in briefing as I have, but it was still, as they like to say, the law of the land at the time this case was filed. So at the time that the case was filed, that motions to dismiss were briefed and argued and that much of the discovery was going on, all of those things that now are settled precedent weren’t.

 

So at the time the case started—and I’m eventually winding my way around to get to the anecdote that I promised—but one of the theories at the outset of the case, in our motions to dismiss in Governor McMaster’s executive order—he points out in his communication with HHS—he points out that the Free Exercise Clause compels us to accommodate faith-based providers that are providing these services as an exercise of their faith.

 

The rejoinder then from the plaintiffs—and again, at the time, to some, this was unsettled or uncertain—was, “Oh, well, you can’t use that Free Exercise argument because the Establishment Clause forbids it,” as if what the Free Exercise Clause requires, the establishment clause could forbid.

 

And again, keeping in mind that I’m sure neither you nor I nor many of our listeners thought that then, and we certainly don’t think it now, but that was in fact considered an open question at the time, whether the Establishment Clause, the Free Exercise Clause were somehow in conflict or in tension with each other. One of our mutual constitutional law professors, you may recall, described it as a careful dance between the two, right?

 

So that was an open question. Fulton hadn’t been cert granted yet. All that to say, here’s the anecdote, is that on the day Fulton was decided, June 17, I believe, 2021, we were actually in a deposition in the Rogers case—one of these two cases -- so a handful in the room and then a dozen people Zooming in from New York and California virtually to conduct the deposition. Depositions begin at 9:00, which, as you know, is often around the same time that Supreme Court, on that day of the week, will begin releasing opinions.

 

And not too much time had gone by in the course of the deposition before I start getting a bunch of text messages and my email starts dinging repeatedly, “Fulton, 9-0.” And it was just kind of a cool confluence of the timing that we’re there in a deposition in a foster care case when Fulton’s getting decided. Now, two years still went by after that point, before the cases were finally disposed of. But it was just the timing of it was serendipitous.

 

Daniel Blomberg:  Serendipitous indeed. And I think that brings us to a good transition point where we can go from the facts and the litigation to the result. And one question is, “Well, doesn’t Fulton resolve this case?” And the answer is, obviously, no—two more years it took to get to the answer. But take us through that. How is Fulton different from the legal issues in this case, and what additional work had to be done to get to the result that you got to here?

 

Miles Coleman:  Yeah. So a couple of differences. And to be clear, within a month after Fulton was decided, I filed a motion in these cases under Rule 12(c). Everybody’s familiar with 12(b), 12(b)(1), 12(b)(6). 12(c) allows you to make another motion—essentially a motion to dismiss. It’s based on the pleadings—but at any time in the course of litigation, as long as it’s not so close to trials disrupting.

 

I moved under 12(c) to have these cases dismissed. I believed then and believe now still that they could and should have been dismissed then and saved us the time and further effort. But I also understand the judicial inclination—perhaps rightly so—to allow a fully developed record, especially in a case that where there’s potential that it may go up to Richmond for review and maybe up to first street eventually. So the 12(c) motion did not succeed.

 

But to be clear, I think that should have decided it. I think Fulton, both then and now, gives us enough guidance, clear enough guidance in this exact context to be dispositive. But on the other hand, here’s a few distinctions, though I would argue they make no difference legally between Fulton and our cases in South Carolina.

 

So Fulton, in some ways is you reverse the polarities, right? In Fulton, you had a hostile government trying to quash out the religious providers, right? It’s the opposite here. Here, you’ve got an accommodating government trying to allow religious providers to continue serving in Fulton. And again, this is a distinction that I think makes no difference.

 

In Fulton, the Supreme Court’s decision talked either not at all about funding or very, very little. Now, to be clear, it was an issue in Fulton. It had been briefed to the lower courts, discussed by the lower courts, and the Catholic Social Services in Philadelphia had, over the time period in question, received what to some would seem like quite a substantial amount of money—relative to other providers, perhaps less so.

 

But so anyway, funding in that Fulton Supreme Court decision didn’t talk about funding much, whereas here, the plaintiffs had made the fact that -- the case rose again from the Title (e) funding—Title 4(e) social security funding—that flows from DSS -- excuse me -- from federal HHS to state DSS and from state DSS to subrecipients, which would include CPAs. So you’ve got the difference in that the roles are switched, which I mentioned. You’ve got the funding issue.

 

And then I guess the third distinction—though, again, should make no difference. The one I already mentioned is that in response to my 12(c) motion, the plaintiffs cried, “Oh. Well, Fulton was a Free Exercise case. They can tell us nothing about this Establishment Clause case”—again, on the assumption that what the Free Exercise Clause requires might somehow be forbidden by the Establishment Clause, a misapprehension put to rest by the Supreme Court in Kennedy for those who held that misapprehension. So those are kind of the three distinctions between it.

 

Let me point out to you one factual development that I didn’t mention earlier is that during the course of this litigation, Miracle Hill’s board of directors made the decision to stop receiving federal or, frankly, any governmental funding as pertains to their foster care services.

 

Now, why was that? Again, through the deposition testimony that I believe preceded that decision? We do know, however, that in the aftermath of the waiver and these lawsuits being filed, Miracle Hill, unfortunately, was the brunt of a vile, concerted, and repeated and sustained just barrage of harassment.

 

Their board members used to have -- you used to be able to contact them through the website. Their board members were receiving vile, violent, pornographic emails directly, clearly, explicitly as a result of Miracle’s position related to foster care. They received arson threats to burn down their facilities as a result of this. It was an incredible distraction from the work of trying to care for adults and children in need.

 

Miracle Hill’s perception was that much of the -- much of that attack, the brunt of it, had to do with the allegation that Miracle was funded by the government. And let me drop a footnote here. The funding doesn’t cover the cost. Miracle is losing money.

 

Even with government funding, Miracle was losing money providing foster care. I won’t go through the whole calculation of it with you, but you can look in our summary judgment briefing. You can look in the evidence attached to it.

 

But they can figure out it costs X number of dollars per day to have the staffing to support the foster homes. The administrative fee that Miracle Hill gets to try to offset those costs doesn’t even cover it. So Miracle is losing money by doing this. This is not some money-making enterprise of serving children in foster care.

 

But in any event, they decided that the funding already wasn’t covering the cost, that the distraction that it was causing from their mission from the ministry was too great, and that they wanted to focus both their own time and effort and the attention of the public on what they were doing, which, again, is their religiously compelled service. They want to be known for and to be able to focus on serving children and adults in the name of Jesus and not to be somehow some lightning rod for, again, these sort of vile calibers that were thrown their way. So that’s one distinction.

 

At the time when Fulton came out, Miracle had not yet made the decision to decline funding. They subsequently did. And at least at the close of discovery and close of litigation and to this day, to my knowledge, still don’t receive government funding. They’re now purely privately funded in these efforts.

 

Daniel Blomberg:  But that didn’t dispose the litigation because even though they weren’t receiving funding any longer, in order to serve as a CPA, in order to do the ministry they wanted to do, they had to still receive authorization, licensure, something of that nature from South Carolina?

 

Miles Coleman:  Exactly. And worse than that, even that fact -- I will let the reader, the listener, determine. But arguably, the fact that that didn’t dispose of the case and that the plaintiffs and their assembled public interest lawyers behind them didn’t think that disposed of the case, I think is revealing of the objective of the groups who brought these cases, who ginned them up and that you’re exactly right.

 

Even once the funding was gone, it wasn’t about the funding, though they had said that -- they had said early on it was about funding. Once the funding was gone, it wasn’t. You’re right. So in order for Miracle to continue or other faith-based CPAs to continue operating in that space, they have to be licensed by the state annually, and they have to be contracted by the state.

 

Now, Miracle Hill still has a contract. It’s a zero-dollar contract. The provision of the contract that would cover payment has just been deleted, but they still have a license and contract. And even that, even working for free, merely being licensed by the state and having a zero-dollar contract was deemed problematic by the plaintiffs, or perhaps more accurately, by their lawyers in these cases. And the case continued.

 

And that’s why, too, when you read the two opinions—one in Rogers, one in Maddonna—it mentions the funding. It talks about funding, but that’s not the end of the opinion. It doesn’t resolve it. The Court still has to go through what we know to be the Proper Establishment Clause analysis: text and history.

 

And in this case, when you look at the text and history of faith-based foster care in the United States, it speaks with one unbroken voice, centuries before the state—and by “state,” I -- the government, not the state of South Carolina—but the government at all, in America, in the colony, centuries before the government was involved in providing foster care or adoptive care or orphan care, can you guess who was? The church—not just the Christian church, but people of faith of all groups and denominations. This dates back thousands of years, right?

 

You can trace it all the way back to the first century when people of faith were providing care to orphans and to widows and to others in need when the state wouldn’t. The state is a relative newcomer to the provision of foster adoptive care.

 

And so when you look back at that, not only dating back to the early days of the Republic, in states from Georgia, where Whitefield established an orphanage—again, a famous colonial era minister—all the way up to New York, where, again, not just Christians, not just Catholics, Jews, people of other faiths were providing orphan and foster care in some instances funded by the city or by the state to the present day. And nobody at that time—and nobody ever since very recently—has ever alleged that that constituted an establishment of religion.

 

Now, I won’t go too far down and follow the next rabbit hole, but that’s because what is an establishment of religion, right? When the state uses its coercive authority and power to compel you, or Free Exercise context, to prevent you from doing something that you believe your religion compels you to do. That’s nowhere close to what happened here and nowhere close to an Establishment Clause claim. I don’t remember what your question was. I distracted myself with that historical retrospective, but I hope I answered it.

 

Daniel Blomberg:  You did. You did. It was talking to us about how Fulton was different from this case. It was informative; it had a significant value, but there was more work to do and more work that was done. And I think that really gets into kind of the last point we want to make with our remaining nine minutes that we have, and we’ll take a few questions, if any, come in at that point.

 

But the issue that the Court resolved then is the one kind of the idea that there’s a conflict at the schizophrenic First Amendment, schizophrenic of religion clauses, where the Free Exercise Clause and the Establishment Clause are at war with one another. And it sounds like the resolution here was, “That’s not the case, that, in fact, what the Free Exercise Clause compelled, the Establishment Clause allowed.” Is that correct?

 

Miles Coleman:  Yeah. I couldn’t say it much better than that myself. So, yes.

 

Daniel Blomberg:  Well, great, great. So transitioning then to some of the questions coming in, one of the questions was about the statement of faith for Miracle Hill and if it’s the kind of statement of faith that -- who all could sign it? Was it really just zeroed in, “We just don’t want to work with individuals who identify as LGBT,” or was it something broader than that?

 

Miles Coleman:  Yes, it’s broader than that. I believe it is -- I haven’t looked recently. But at least during the pendency of the case, it’s available on Miracle Hill’s website. So if you want to actually read it for yourself, you’re welcome to go and go to your favorite search engine and search for Miracle Hill and look it up.

 

It’s what we might think of as -- or at least what I would think of as sort of an Apostles Creed statement of faith: the fatherhood of God, the deity of Christ, the sinful nature of man, the redemptive work of Jesus, his eventual return to restore things and make them right, make the bad things come untrue. Not a narrow, not a particularly denominational type of thing.

 

And, in fact, one point would be in one of the lawsuits, the one brought by Amy Maddonna, represented by Americans United, Amy Maddonna professes to be a Roman Catholic and professes that she could not sign -- she could not or would not sign Miracle Hill’s statement, faith.

 

Notably, the Diocese of Charleston—that’s the Roman Catholic diocese with ecclesiastical jurisdiction over the entire state—has, in fact, at that time, both before her statement and since then, has reviewed Miracle Hill’s doctrinal statement. The official moral theologian of the diocese has reviewed it and found it to be compatible with Christian teaching, including Roman Catholic teaching and belief, and has opined that a good Roman Catholic could, in fact, sign the statement.

 

So, all that to say, it’s not a narrow, particularly denominational, or narrowly sectarian statement of faith. To the point about the Unitarian Universalists, I don’t know how familiar you are with their beliefs, or lack thereof. This is something we went through in painstaking detail in some of the depositions.

 

There are intractable, irreconcilable differences between Unitarian Universal belief and, again, broadly speaking, Apostles Creed, Christian beliefs. For example, you can be a Unitarian, and you are allowed to believe—it’s nearly stated as bluntly as that—you’re allowed to believe that Jesus is a way to heaven, but they affirmatively, expressly do not hold to the Christian belief that Jesus is the one way to reconciliation with God or the one way to a blessed afterlife.

 

Unitarians don’t believe in any sort of eternal condemnation or punishment of those, right? We can go through it. We don’t need to go through it line by line, doctrine by doctrine. But in any number of instances—and again, it’s conceded and covered in deposition testimony—you’ve got this divergence where the two are different: Unitarian Universalism and, again, a pretty broadly ecumenical Christian statement of faith.

 

Daniel Blomberg:  So there was a dividing line here, but it was a dividing line in which a Catholic individual could reasonably sign the statement of faith, even while a Unitarian Universalist wouldn’t feel comfortable signing it?

 

Miles Coleman:  Right. Catholics, Orthodox, Protestant Christians of all stripes, who, again, hold of traditional Orthodox Christian beliefs -- and to be clear, too, Miracle Hill, both at the time was making these decisions and since then has had wonderful, strong alliances with devout Jewish groups, with devout Muslim groups, all of whom say, “Yes. We disagree on matters of doctrine, but we believe”—“we,” I’m speaking on behalf of, for example, some of the Jewish coalitions that support Miracle Hill—“believe that Miracle Hill should have the right to work only with Christians, even if it means not working with Jews.

 

And in the same vein, Jewish organizations, synagogues, social services institutions should have the right and ability, if they wish, to work only with those of their own faith and their own faith tradition and not with Christians. Same thing for Muslims. So it was really kind of a wonderful illustration of different faith groups, each supporting one another’s right to be distinctive in their associational rights, in their associational beliefs, in their practices, while recognizing that same freedom should be provided to all.

 

And the point you made earlier, Daniel, Governor McMaster, I think, expressly in his executive order—and if it wasn’t expressed in the executive order, certainly in other documents that were produced in discovery—he expressly said, “This right extends not just to Miracle Hill, but to any faith-based organization providing foster care, whether it be Jewish, Muslim, Christian. Fill in the blank,” right?

 

If there were a free thinkers foster care organization, well, we believe they should be able to partner only with other freethinkers, atheists, and agnostics. If there was a foster care association specifically and expressly devoted to trying to recruit from the LGBTQ community and to support those parents, they should exist, too. And the government would be happy to accommodate them and work with them on the same basis as any of these other organizations.

 

So it really was a -- an effort to accommodate as widely as possible because, again, what’s the goal at a very practical, pragmatic level? More foster parents, more prospective foster parents, more homes for children in need. And in this case, it happened to mean accommodating Miracle Hill. In other cases, it could mean accommodating other groups. We’d be happy to do that as well.

 

Daniel Blomberg:  An all-hands-on-deck approach. And I’m not trying to unnecessarily exclude anyone. So we’re down to the last two minutes—so a kind of lightning round moment here for you. I’m going to combine a couple of questions, and take what you can.

 

So one would be, do you have the cites to Maddonna and Rogers for our audience in case anybody wants to build on those? And then two, what’s the upshot of all this, right? The wins in Maddonna, the wins in Rogers. What does that mean for foster care families in South Carolina? Are there more or less, are there more freedom to do foster care work? Less freedom? And then what is the upshot for religious liberty and the rights of different faith groups to provide social services in the state of South Carolina in the two minutes you have remaining?

 

Miles Coleman:  We’re down to a minute and a half now. Thanks very much. We don’t have time, but if we did, maybe we’ll do another webinar at some point, right? I wish you could sort of lay back and gaze up at the night sky of First Amendment law and we could sort of pick out, “Oh, there’s the free speech constellation, and over here, that’s the associational rights, and, oh, there’s foster care, religious rights,” and we can sort of zoom in and figure out where this particular star fits in that constellation. We don’t have time to do that today.

 

The upshot of it, though, is that we’ve got undisputed record evidence that shows between 2019 and today, 2019 was when HHS granted the waiver and the notice of nonprofit. Between then and now, the number of foster parents has risen, not decreased, as was alleged that by accommodating Christian groups, somehow, the number would go down. No, in fact, the number has increased.

 

We know that at least 243 licensed foster homes in the upstate are still serving, are still available if DSS chooses to place a child in their homes. And from even more of a macro perspective, we know that in South Carolina—and hopefully, to the extent of this persuasive precedent in other states as well—there is greater freedom to foster, regardless of your religious beliefs and regardless of your sexual orientation, regardless of any of those factors, anyone who’s willing, who’s able, who’s competent, capable and qualified and wants to foster, there’s a place for you in the South Carolina foster care system. And that’s how it ought to be.

 

We shouldn’t exclude anybody, whether individuals or entities, because of their faith, but we should also allow them realizing that they are doing this as an exercise of their faith and they want to work with -- and there are foster parents who want to work specifically with them, and we should welcome them with open arms just like anybody else.

 

Daniel Blomberg:  It’s a good conclusion. And Chayila, back over to you.

 

Chayila Kleist:  Thank you. I really appreciate you joining us, Mr. Coleman, Mr. Blomberg, and lending us your valuable time and expertise. Thank you also to our audience for joining and participating.

 

      We welcome listener feedback by email at [email protected]. And, as always, keep an eye on our website and your emails for announcements about other upcoming virtual events, like two others happening today: one being another Litigation Update on a religious liberties case pertaining to education policy and parental rights, and another being the next installment in our series, “Conservatives Talk Presidential Power.”

 

      We’d love to see you at both of those. But now, we can wrap this webinar up. Thank you all for joining us today. We are adjourned.

 

 

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