This past Friday came the announcement that the ACLU of Michigan and the state of Michigan settled a lawsuit that we, the ACLU, had filed — challenging the state’s practice of allowing state-contracted, taxpayer-funded foster care and adoption agencies to use religious criteria to exclude same-sex couples.
Our plaintiffs, Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton, wanted to become foster parents with the intention of adopting children who are wards of the state, but they were turned down by two faith-based agencies Bethany Christian Services and St. Vincent Catholic Charities. The adoption agencies have contracts to with the state of Michigan to act on behalf of the state but turned the plaintiff’s down because of their own religious objections to accepting same-sex couples.
The state of Michigan actually has the agencies it contracts with sign a statement that pledges they will not discriminate based on a number of categories, including sexual orientation. Despite the fact, that the two faith-based agencies signed the statement and proceeded to discriminate. Though the state was aware that it was violating the language of the contracts, it took no action. We filed our lawsuit in federal court in September 2017, arguing that the state’s refusal to act, violated the federal Constitution because it singled out LGBT families for discrimination while crossing the line between the separation of church and state.
The state of Michigan, represented by then-Attorney General Bill Schuette responded that the same-sex couples turned away by these specific faith-based agencies could just go to other agencies who wouldn’t discriminate against them. However, as a result of the 2018 elections, current Attorney General Dana Nessel reconsidered that position and is now requiring that all contracted foster care and adoption agencies not discriminate against same-sex couples in their provision of services. Elections do have consequences, and in this case, some very positive ones for the LGBTQ community.
We applaud the state of Michigan for recognizing that discrimination has no place in our child welfare system. This move will support the nearly 12,000 children in foster care in Michigan — particularly those who are in group homes because of the lack of available families or those currently waiting to be adopted by a loving family. It also sends a powerful message that discrimination will not be tolerated, nor tax-payer funded in Michigan.
Same-sex couples like the Dumonts and the Busk-Suttons, who want to open up their hearts and homes to a child in need, should be judged on only one thing: their capacity to provide love and support to a child, not whether they pass a religious test. Allowing agencies to turn away qualified families does nothing to provide more families for children in need of a loving, stable home — it merely reduces the pool of eligible families for these kids. Whether agencies are faith-based or secular, when they choose to accept taxpayer dollars to provide a critical government service, they must put the interests of children above everything else.
It’s important to note that when religious criteria are used in the child welfare system, it is not only same-sex couples who are at risk. In South Carolina, because of such a policy, the largest agency in the state accepts only Protestant Christians and has turned away Catholic and Jewish families. This denies children countless families who could provide them that loving home.
As part of their legal arguments, St. Vincent Catholic Charities, which was permitted to intervene in the case, stated that if they were not permitted as a contracted agency to turn away same-sex couples that they would have to shut down and that this would result in an insufficient number of foster/adoption agencies to care for children. However, the fact is that there is a shortage of families for kids in Michigan, not a shortage of agencies. Currently, there are close to 80 agencies, including faith-based agencies that are willing to accept all qualified families, including LGBTQ families. As experience in other states has demonstrated, when agencies have chosen to discontinue providing foster care services, other agencies, including faith-based agencies, seamlessly took over that work and services to children continued uninterrupted.
Freedom of religion is a core American value but that freedom does not give anyone the right to a government contract that deprives children in the foster care system of families who could care for them. Last week’s case settlement was a strong statement by the current administration in Michigan that it’s the welfare of children that should come first.