Philadelphia Adoption Decision Resounds Nationally
This year, it is arguable that Dumont v. Lyon is one of the American Civil Liberties Union of Michigan's most recognizable cases. In it, the ACLU has claimed that Michigan unfairly allowed publicly contracted foster and adoption agencies St. Vincent's Catholic Charities and Bethany Christian Services to discriminate against same-sex couples wishing to act as adoptive or foster parents. But this topic isn't isolated in Michigan, it's being talked about on a national scale. And one such recent ruling in Philadelphia against anti-gay treatment might affect not only Michigan, but the whole U.S.
On Friday, July 13, U.S. District Judge Petrese B. Tucker of Philadelphia ruled against foster and adoption agency Catholic Social Services. The religious organization claimed that it had the right to refuse services to same-sex couples in its publicly-funded foster care programs, but Tucker rejected that argument. According to American Civil Liberties Union of Michigan LGBT Staff Attorney Jay Kaplan, the decision was a big win not only for the Pennsylvania LGBTQ community, but potentially the rest of the U.S.
"Certainly, these agencies, they have a right as a private entity to do private adoptions, to decide who they choose to work with," Kaplan said. "But here one does not have a Constitutional or fundamental right to a governmental contract, or the ability to be able to do a contract with the government solely on your own terms about who you wish to provide services to."
The named plaintiffs in the suit include two couples Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton who were turned away because of their sexual orientation. Also included is Jennifer Ludolph who was once in foster care herself. Ludolph argues that although she was placed in a loving home, if the organization that handled her case had held religious objections to the fact that her foster father is an atheist she might not have been placed there. The named defendant is Nick Lyon in his role as the director of the Michigan Department of Health and Human Services and Herman McCall who is the director of the Michigan Children's Services Agency, an agency within the MDHHS.
The suit's plaintiff's contend that the actions of the defendants violated both the First Admendment, which forbids the government from favoring any one religion, and the Fourteenth Amendment, which guarantees equal protections for U.S. citizens. Kaplan said that he is hopeful that the Philadelphia decision can help set a precedent that could impact how the Michigan case is handled.
"I think it's important to note that the judge in the eastern district for Michigan does not have to follow what a district court judge in another state has done. However, it can provide some guidance," Kaplan said. "So, we think it's very important, the Philadelphia decision, to be considered as a supplemental authority to our claim that the state, by allowing contracted agencies that are operating on behalf of the state to provide foster and adoption services, shouldn't be able to discriminate based on a particular religious belief."
Kaplan went on to emphasize that both religious organizations broke explicit anti-discrimination rules in their contracts with the state.
"That's what the court in the Philadelphia case addressed," he said. "They addressed performing of governmental functions and how this can violate the principles of separation of church and state when a governmental entity is contracting with an entity that's promoting a particular viewpoint."
Kaplan said that once the government allows its public services to support a particular creed it can be a "slippery slope."
"Once you permit this form of discrimination you can have agencies saying, 'We don't want to work with couples who might have been divorced previously. We don't want to work with couples where the mother works because we think the mother should stay home and take care of children. We don't want to work with people because maybe they're of the Muslim faith — their religion, we don't agree with those principles,'" Kaplan said. "And what you do is you make this pool of potential parents who can provide a loving and secure home for kids smaller and smaller. And, ultimately, it's the child that gets hurt."
Representatives from the Michigan attorney general's office, which is representing the state in this legal battle, and the MDHHS have made the argument that if St. Vincent's and CSS are forced by the court to provide equal consideration to same-sex couples they will be strong-armed into closing their doors. Also arguing that this could result in an even smaller pool of homes for children in need of adoption and foster care services. However, Kaplan emphasized that the suit by the ACLU is not an attempt to force these agencies to close, simply to have them change their practices.
"You know, it's ironic that on the one hand the argument is being made that, 'We provide this very unique service and that no other agency is able to provide these foster care services or these adoptive services' and on the second, on the other side of the coin is, 'Well, you can go someplace else. There are other agencies that will serve you,"" Kaplain said.
Kaplan then went on to cite a similar case of a religious foster care contract violation in San Francisco that was used in the decision of the Philadelphia case. In that instance, defendants argued they would have to close if they offered services to same-sex couples but instead ended up collaborating with other same-sex-affirming organizations.
"That's why you do have a hearing and you present factual evidence," Kaplan said. "If, in fact, it's true (that) these agencies cannot refuse to work with same-sex couples as a condition of their contract are they actually going to shut down? And if so, are there not going to be other agencies to provide those services?"
Kaplan said that there are, pointing to the dozens of other same-sex-affirming agencies across Michigan. For now, next steps include waiting on the decision of U.S. District Judge Paul Borman who is weighing the arguments of both sides. Kaplan said that whatever the judge decides, the ACLU will keep fighting to ensure that "the best interests of a child does not take a backseat to what might be the religious philosophy or viewpoints of a certain agency that (the state) contract(s) with."
