Texas Atty General Fighting to Allow Bias Against LGBTQ Parents

The state of Texas -- via anti-LGBTQ Attorney General Ken Paxton -- and the Roman Catholic Archdiocese of Galveston-Houston are suing the federal government in hopes of allowing faith-based adoption and foster care agencies to discriminate and still receive federal funds.

They filed the suit October 31 in U.S. District Court for the Southern District of Texas. The complaint was posted online by the Becket Fund for Religious Liberty, a far-right legal nonprofit that is representing the archdiocese.

The suit says the state's Department of Family and Protective Services, which receives federal funding through the U.S. Department of Health and Human Services, complies with an HHS rule prohibiting grant recipients from discriminating based on sexual orientation and gender identity. But it partners with private agencies, including faith-based ones whose beliefs prevent them from placing children with LGBTQ parents, the suit notes. The archdiocese would like to provide child placement services under a state contract but does not want to comply with the rule.

The rule dates from when Barack Obama was president. The day after the suit was filed, Donald Trump's administration announced plans for a new rule allowing faith-based HHS grant recipients, including those involved in adoption and foster care, to discriminate against LGBTQ people and others in the name of religious freedom. While it is formulating the new rule, it will cease enforcing the Obama-era regulation. This seems as if it would render the suit moot; The Advocate has asked the parties in the suit for comment and is awaiting a reply.

The suit asks the court to declare that contractors, such as the archdiocese, are exempt from the HHS prohibition on anti-LGBTQ discrimination. If the court rules that it does apply to child placement agencies, it should strike down the prohibition as unlawful, the complaint states, saying applied in that way, it goes beyond antidiscrimination law passed by Congress and violates the Administrative Procedure Act, the Religious Freedom Restoration Act, and the U.S. Constitution. "HHS acted arbitrarily and capriciously" in enacting it, the suit adds.

Texas already allows faith-based agencies that discriminate to receive state funds, under a law passed in 2017.

Paxton has a long history of opposing LGBTQ rights, as do other Texas state officials, such as Gov. Greg Abbott and Lt. Gov. Dan Patrick. Paxton joined AGs from other states in suing over the Obama administration's guidelines on equal treatment of transgender students (since reversed by Trump), has advocated for doctors' right to turn away trans patients, and argued for outing trans students to their parents.

He has fought against marriage equality; even after the U.S. Supreme Court ruling for nationwide marriage equality, he urged Texas county clerks with religious objections to deny marriage licenses to same-sex couples. He also joined a group of AGs in calling on the Supreme Court to rule, in cases currently pending, that existing civil rights law does not ban anti-LGBTQ discrimination.

Paxton was indicted four years ago on securities fraud charges; he is accused of misleading investors in a company during the period before he was attorney general. The case has yet to go to trial.

Becket also has a history of anti-LGBTQ work. Recently, representing a Catholic adoption agency in Michigan, it won a preliminary injunction preventing the state from enforcing its LGBTQ-inclusive nondiscrimination policy for child placement agencies while the case proceeds.