Michigan ACLU Same-Sex Adoption Services, Foster Care Case Moves Forward

Last week, a federal district court ruled that a challenge by the American Civil Liberties Union of Michigan against the state of Michigan could go forward. The challenge addressed the state's allowance of governmentally-contracted faith-based adoption agencies to discriminate against same-sex couples. The plaintiffs are same-sex couples Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton who were both denied as potential adoptive parents by state-contracted religious agencies. Also included was Jennifer Ludolph who was herself in the child welfare system and objects to taxpayer dollars funding religious discrimination.
"… the Court DENIES Defendants' motions to dismiss except that the Court GRANTS the motion to dismiss Plaintiff Jennifer Ludolph's claims for lack of standing," read U.S. District Judge Paul D. Borman's ruling.
In the case of Ludolph, ACLU Staff Attorney Jay Kaplan said that "his ruling … (is that) she would no longer be a plaintiff, but we haven't decided yet what we might do. We're going to sit down and talk about that."
"The court didn't feel there was enough nexus for any of our plaintiffs to have taxpayer standing, but there were other grounds found why the plaintiffs, Eric and Rebecca as well as Kristy and Dana, have the other claims they have," Kaplan continued. "The constitutional claims, they remain plaintiffs on that criteria."
The case's defendants are St. Vincent Catholic Charities, Michigan Department of Health and Human Services director Nick Lyon and Herman McCall, the director of the state Children's Services Agency. In their argument, they referenced a 2015 Michigan Law that said child placement agencies wouldn't be required to provide services in conflict with their own religious beliefs.
In a Detroit News report, Mark Rienzi an attorney with Becket, a law firm that is representing St. Vincent Catholic Charities said that the "court ruling allows the ACLU's lawsuit to proceed — a lawsuit aimed at forbidding the state from working with faith-based adoption agencies to help children in need."
"Such a result would make it much harder for thousands of children to find the loving home they each deserve," Rienzi continued. "Becket is fighting to make sure that doesn't happen, and this is just one step along the journey in this case."
Kaplan said that Rienzi's statement does not reflect the ACLU's intentions.
"Not at all," Kaplan said. "And it's interesting to note that we did not name the faith-based agencies that are refusing to work with same-sex couples and defendants to the lawsuit. Now, St. Vincent put a motion to intervene, so they now are part of the lawsuit, but we did not name them because we don't object to the idea of the government contracting with various agencies to provide these services, including faith-based adoption services."
Kaplan went on to emphasize his point by saying that Borman made clear in his order that when the government forms a contract with private entities, the entities should follow civil rights laws and nondiscrimination requirements, "They can enforce that."
"That's what the state of Michigan should be doing," he said. "If you have people sign a contract saying you don't discriminate based on sexual orientation, and yet you know these two particular agencies are doing so, then you need to do something about it. And, you know, no one has a constitutional right to a governmental contract, but if you decide you want to participate if you're selected for this, the government can require you not to discriminate."
Kaplan said that the next step in the legal process will be discovery.
"Discovery is the process where you gather your evidence with regards to the claims that you're making and you're able to demonstrate that indeed this has happened factually, and why this would be in violation of the law," he said.
Kaplan went on to say that the case will either proceed to a summary judgment, "In other words saying, 'We've already presented, we have enough information to indicate that the court could decide this case without actually having a hearing,'" or a "full evidentiary hearing."
The ruling for the case to move forward follows a decision by a Philadelphia federal court that involved a similar situation. In that case, a faith-based foster care agency claimed that by being required by the city to include same-sex couples as potential foster parents, its rights were being infringed. Kaplan said that it might have had an impact on this decision because the judge made reference to the Philadelphia decision in his ruling.
"What's so important about this issue is not only the facts of our case or dealing with the issue of creating enough permanent homes for kids who are in foster care, but I think also what we're seeing is one of the largest threats to LGBT rights and LGBT equality: The attempt to justify discrimination or to exempt discrimination against LGBT people in the name of religion," Kaplan said. "This is a very important case and it focuses on that issue, but we're seeing this on many fronts across the country. Even in the state of Michigan there are other situations where people are trying to justify discrimination against LGBT people based on their religious beliefs, and this is an issue that continues to be a threat and it isn't going away any time soon."