Faith-Based Service Refusals in State-Sponsored Foster, Adoptive Care is Illegal

There are more than 13,000 children in Michigan's foster care system who are need of permanent loving and supportive homes. The State of Michigan through the Department of Health and Human Services and the Children's Services Agency is tasked with providing both foster care and adoption placement services for children who have been removed from their homes due to abuse and neglect. Some adoptive Michigan delegates contract with private foster care and adoption agencies, and pay them taxpayer dollars to perform this government function; some of these agencies are faith-based agencies. Even those that are faith-based, however, receive their funding and sign contracts that state they will not discriminate in providing services on the basis of various categories that include race, religion and sexual orientation.
But, contract or not, there are still some faith based agencies that refuse to work with prospective families that are headed by same-sex couples or to place children with same-sex families due the agencies' religious beliefs. That is fine when these agencies are not being paid by the State to act on its behalf. However, when they voluntarily choose to become state actors they legally cannot single out same-sex couples — or any other protected group — for discriminatory treatment. And yet that is what Bethany Christian Services and St. Vincent Catholic Charities are doing. I am the ACLU of Michigan's staff attorney for the LGBT project and witnessed just such a service refusal with our plaintiff couples Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton; when both of these couples contacted these agencies they were turned away because of their sexual orientation.
When we contacted the State of Michigan to let them know these agencies were discriminating against same-sex couples, in violation of the contracts they had signed with the State, the Attorney General's office refused to meet with us, suggesting that we would probably end up suing the State. So, that's what we did. We sued the State of Michigan for the practice of permitting state-contracted agencies to refuse to work with same-sex couples. Same-sex couples in Michigan are not being provided the same menu of foster care and adoption services provided to other families, and the state is permitting this type of discrimination in the name of religion — despite the fact that our constitution provides for separation of church and state.
Even more damaging is that by permitting state contracted agencies to turn away same-sex couples who are ready, willing and able to provide warm, loving and supportive homes, Michigan is reducing the pool of prospective foster and adoptive homes for those children who are wards of the state. This practice has nothing to do with what is in the best interests of children, but all about accommodating the religious beliefs of agencies receiving taxpayer funds to do work on behalf of the state.
We filed our legal challenge in federal court in September 2017, and the state's response — in addition to filing a motion to dismiss — has been that there are other state contracted agencies that will serve same-sex couples and that if agencies such as Bethany Christian and St. Vincent Catholic Charities are not permitted to discriminate that they will go out of business and then there will be less foster care and adoption services available to prospective families and children. This argument is echoed by St. Vincent Catholic Charities which was permitted to intervene in the lawsuit as a defendant. St. Vincent Catholic Charities also argues in its motion to dismiss that it provides a unique service that cannot be duplicated by the six dozen other foster and adoption agencies across the state, and that if St. Vincent's shuts down its operations, that foster and adoption services in Michigan will significantly suffer. At the same time, St. Vincent also states that same-sex couples could and should go to other agencies that will work with them.
This "going some place else" argument has been historically used to justify discrimination on the basis of race. If a restaurant refuses to serve African-Americans, they can simply find another restaurant that will. What we are seeing in our state is an attempt to use religion to justify discrimination, discrimination by agencies that are essentially state actors. This should be highly disturbing not only because we have Michigan giving its tacit approval to this discrimination, but is also harming the children it purports to serve.