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Texas Impact Letter to Sen. Perry about SB 892 / HB 3859
April 27, 2017
Dear Senator Perry,
Thank you for your thoughtful questions in committee regarding SB 892. As an interfaith organization, Texas Impact is deeply committed to freedom of religious expression for all of Texas’ diverse faith communities. It is out of this commitment that we bring our concerns about SB 892. Based on our experience in the committee hearing, we are not confident that our concerns were expressed or understood thoroughly, and so we offer the following by way of clarification.
Generally, we are supportive of efforts to prevent discrimination in state contracting. We also support religious accommodations so long as the government does not have a state interest that compels a narrowly tailored regulation, and a person is not allowed to harm others as an expression of faith. But the provision of child welfare services is very fact specific. Therefore, we desire to work with stakeholders to address specific concerns while maintaining the state’s compelling interest to ensure the best interest of the child.
Regarding our relationship to child welfare providers, Texas Impact is a statewide membership organization whose members include mainline Protestant denominations and organizations of the Christian, Jewish, and Muslim faiths. Those members have numerous ministries to foster children, which include affiliations with children’s homes. Before taking a position, we consulted with denominationally affiliated child welfare providers and attorneys representing our member denominations; child advocacy organizations; and the Baptist Joint Committee for Religious Liberty.
We remain concerned about the potential for unintended consequences resulting from the current language of SB 892.
A “sincerely held religious belief” is an exceptionally low bar to establish in a court of law. It is exceptionally rare for a court to find a person’s religious belief to be “insincere” because our civil courts do not involve themselves in arbitrating matters of religious doctrine. Therefore, we interpret Section 45.004 to allow a religious provider to decline to provide any service otherwise required in a state contract for child welfare services.
The Department of Family and Protective Services relies on dozens of different types of contracts, grants, and agreements to ensure the best interest of children in the state’s custody. However, there are numerous and diverse religious beliefs present in Texas. The full range of possibilities for a sincerely held religious belief’s conflicting with a provision in a state contract is impossible to predict. We recommend a more narrow approach, which would be to enumerate the specific religious beliefs and practices that the bill targets for accommodation.
The addition of subsection (h) in Section 45.009 in the committee substitute improves the bill from the filed version. However, we remain concerned about the implementation. Children do not always know their rights; what services they are suppose to be provided; or how to assert what is in their best interest with a caseworker. Additionally, caseworkers will not know what questions to ask if they do not know what services have been declined.
For instance, as Deputy First Assistant to the Attorney General Brantley Starr testified, SB 892 would allow foster parents to decline to have the foster child vaccinated for religious reasons. While subsection (h) clarifies that DFPS cannot be prohibited from obtaining the immunization from an alternative provider, the child would have to know to inform the department, or the caseworker would have to know to ask. This would be especially complex in the case of a pre-verbal or disabled child.
Given the level of detail prescribed in DFPS’s current state contracts, we recommend the agency be given rulemaking authority in order to set up a process by which the department can learn of any potential religious objections in the contracting process. DFPS needs to know about any and all anticipated or potential religious accommodations from the beginning of every public/private partnership. This will allow the department and single source continuum contractor (SSCC) to make provision timely to provide alternative services under 45.005.
Second, notice needs to be provided to any potential defendants by the religious provider before a lawsuit is filed. The department or SSCC need the opportunity to remedy any violation before litigation commences. Additionally, the private right of action in Section 45.006 allows a religious provider to sue based on the provider’s subjective perception that a sincerely held religious belief is “threatened.” It is inequitable to the department or SSCC to learn of the religious objection only after legal action has been initiated. Furthermore, notice to potential defendants would reduce litigation expenses to the taxpayer.
Lastly, SB 892 would create additional costs for the state. In the above immunization example, the department would be responsible for making alternative provision to secure the child’s immunization. In addition to a time-consuming new responsibility for an already overburdened caseworker, the mechanics of the alternative arrangement, such as transportation, would have associated costs. However, the state would be unable to recover that cost from the amount it pays to the religious provider because such recovery would be an “adverse action” prohibited by SB 892. Providers should not be paid for services they decline to perform. At best, it is an anti-competitive contracting practice. At worst, it is a potentially unconstitutional taxpayer subsidy of a religious belief. We recommend amending SB 892 to allow the department to reduce a contract for nonperformance in cases where a provider’s refusal to meet a contract provision on religious grounds results in a new cost to the department, an SSCC, or another provider.
Texas Impact appreciates the conversation on such an important matter to people of faith. Thank you for your work on behalf of the children of Texas. We look forward to working with you.