The American Civil Liberties Union and its Michigan affiliate are suing that state over a law that allows publicly funded foster care and adoption agencies to discriminate against LGBT people and others because of religious objections.
The Michigan Department of Health and Human Services, responsible for the 13,000 children in the state’s foster care system, contracts out the placement of these children with foster or adoptive families, and some of the agencies under contract have religious affiliations. Under a law passed in 2015, shortly before the U.S. Supreme Court’s marriage equality decision, the state must not “adverse action,” including the stripping of funds, against agencies that reject prospective parents on faith-based grounds. The agencies must refer the parents elsewhere, however.
The law not only allows discrimination against prospective parents but places children at risk, ACLU attorneys said in a conference call today announcing the lawsuit. Even when prospective parents can go to another agency — sometimes there is not another option in their part of the state — “children don’t get to choose the agency they are assigned to,” said Jay Kaplan, staff attorney at the ACLU of Michigan’s Nancy Katz and Margo Dichtemiller LGBT Project.
Named plaintiffs in the suit include two couples, Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton, who were turned away by state-contracted agencies because of these agencies’ religious objections to same-sex couples. “They didn’t even know us and they are basing the decision on who we are married to,” said Kristy Dumont. The agencies, according to the suit, were St. Vincent’s Catholic Charities and Bethany Christian Services, both in Lansing. The Busk-Suttons were rejected by another Bethany office, in Madison Heights.
Another named plaintiff is Jennifer Ludolph, a Michigan resident who went through the state foster care system as a child and was ultimately placed with a nurturing family. She says the religious objections law could have interfered with her placement, as her foster father is an atheist.
The suit contends that the law violates the First Amendment to the U.S. Constitution, which forbids any establishment of religion by government, and the Fourteenth Amendment, which guarantees equal protection of the laws. It was filed in U.S. District Court for the Eastern District of Michigan and names as defendants Nick Lyon, in his official capacity as director of the Michigan DHHS, and Herman McCall, in his official capacity as director of the Michigan Children’s Services Agency, a sub-agency of the DHHS.
The lawsuit does not challenge any private agency’s right to apply religious considerations in arranging adoptions that do not involve state government, ACLU attorneys said, but when these private agencies are using taxpayer dollars to make arrangements for children in state custody, they are obligated to follow the Constitution.
Coinciding with the lawsuit, the Movement Advancement Project today unveiled its “Kids Pay the Price” campaign against the Michigan law and others that allow religious objections to play a role in state-funded adoption services. There are similar laws in Texas, South Dakota, Alabama, North Dakota, Mississippi, and Virginia. Also, a bill is pending in Congress that would allow "religious objections" nationwide. It would cut federal funding by 15 percent for state or local governments' child welfare services programs if they punish contracted agencies for turning away clients due to religious objections.
MAP created and released a TV commercial on the matter, in partnership with the Child Welfare League of America and the National Association of Social Workers, and sought to air it on Fox News Channel’s Tucker Carlson Tonight. Fox News rejected the ad as “too powerful,” said MAP executive director Ineke Mushovic. Watch below, and go to MAP’s website for more on the campaign, including a new report, “Kids Pay the Price: How Religious Exemptions for Child Welfare Agencies Harm Children.”