Gay and lesbian couples have been able to marry in Michigan since the Obergefell v Hodges decision in 2015. But the state is still creating barriers to those couples creating a family through adoption. Now two lesbian couples, an adoptee of an Atheist father, and the ACLU are teaming up to stop state-funded religious adoption discrimination. But will they win?
Adopting While Gay in Michigan
Until 2015, gay marriage was not legal or recognized in Michigan. Even if a couple went through the time and expense to travel to another state, or Canada, to be legally married, when they came back home to Michigan, they were still considered single. Michigan law also requires two people to be married if they want to jointly adopt a child. That meant that until the Obergefell v Hodges Supreme Court decision, only one of the couple could become the legal parent of the adopted child.
At the same time, Michigan’s Department of Health and Human Services (DHHS) had begun farming out foster care licensing and placement, and adoption services to over 100 private child placing agencies statewide. These agencies are paid based on individual contracts and state statutes. Some make up to $40 per day from the State for each adoption case they handle. And many of these are operated by religious organizations including St. Vincent Catholic Charities and Bethany.
What Religion Has to Do with Adoption
These religious child placement agencies hold strict religious principles that they say prohibit them from placing children with unmarried or same-sex couples. For years, they have been categorically turning away gay and lesbian applicants who desired to foster or adopt a child based on these principles. And it is their Constitutional right to exercise their religion in this way. But when they started receiving State funding for their work, the ACLU says they were acting as agents of the State. And the State cannot discriminate on a religious basis.
DHHS has a non-discrimination statement, which is supposed to apply to all child placing agencies under contract to do this work. It says that those agencies “will not discriminate against any individual or group because of race, sex, religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs or disability.” This requirement “applies to all applications filed for adoption of [DHHS] supervised children, including [DHHS] supervised children assigned to a contracted agency.” In other words, DHHS is not allowed, by its own policy to discriminate against same-sex couples (or any other minority). And that policy is supposed to apply to child placing agencies under contract with the agency.
Looking the Other Way Until the Law Changed
But DHHS had never applied this policy to the various religious child placing agencies receiving money from it. Even though Bethany and St. Vincent’s were turning away single and same-sex parents, DHHS continued to renew their contracts, looking the other way and ignoring the adoption discrimination happening under its authority.
Then in 2013, the Michigan legislature considered a set of bills that would make DHHS’s informal policy law. The bill to prevent didn’t survive, but two years later, on June 11, 2015, their successor bills became law. MCL 400.5a, 722.124e, 722.124f, and 710.23g explicitly allowed DHHS to make exceptions for religious child placement agencies. The statutes allow:
“To the fullest extent permitted by state and federal law, a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.”
“To the fullest extent permitted by state and federal law, the state or a local unit of government shall not take an adverse action against a child placing agency on the basis that the child placing agency has declined or will decline to provide any services that conflict with, or provide any services under the circumstances that conflict with, the child placing agency’s sincerely held religious belief.
In other words, DHHS, or any local governmental unit is not allowed to require a child placement agency to comply with its non-discrimination policy if doing so would go against that agency’s sincerely held religious belief. In fact, it can’t even cancel the contract to allocate the funds to an agency that would provide the needed services. The bills codified adoption discrimination into law.
ACLU Strikes Back with LGBT Plaintiffs
Two years later, the ACLU of Michigan has brought together two lesbian couples and a former foster child from the system to challenge these discriminatory laws. The couples say in their Complaint that they tried to file foster parent applications with St. Vincent’s and Bethany child placing services and were turned away. They, together with the now-adult foster child, objected to the laws. They allege that the laws violate the First Amendment’s Establishment Clause, by allowing the government to finance religious purposes. It also is said to violate the 14th Amendment’s Equal Protection Clause, by treating gay and lesbian parents differently than their heterosexual counterparts for no legitimate government purpose. The government does not get to have sincerely held religious beliefs.
It should be noted that, while the ACLU’s plaintiffs are same-sex couples, the law as written could also be used to deny placement with single parents, religious minorities, or a variety of other protected parties simply by claiming it was done for a religious child placing agency’s sincerely held religious belief.
The ACLU of Michigan is asking the United States District Court in the Eastern District of Michigan (in Detroit) to rule that the laws, and the DHHS policy they codified, are unconstitutional. It is not saying that religious child placing agencies should be required to violate their religious principles. However, should those principles include adoption discrimination, the ACLU is asking the court from prohibiting DHHS from giving them any taxpayer money. Finally, the ACLU complaint asks the court to ensure that lesbian and gay individuals and couples be treated the same as their heterosexual counterparts by state-contracted child placing agencies.
A lot can happen after a complaint of this kind is filed. It could be resolved quickly and quietly through a settlement. Or it could result in long, drawn out litigation the same way DeBoer v Snyder did (which was the Michigan gay marriage case later consolidated with Obergefell). But for LGBT couples hoping to adopt, the complaint demonstrates that someone is looking out for them against adoption discrimination.
Lisa J. Schmidt is a family law attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She places special emphasis in assisting LGBT couples with their family planning and adoption issues. Lisa J. Schmidt also serves on the Board of Directors for the ACLU of Michigan. If you need help with an adoption, sperm donor agreement or custody dispute, contact Schmidt & Long today for a consultation.