Two foster care and adoption agencies were violating Michigan’s nondiscrimination laws by refusing to work with same-sex couples, per the settlement of a case announced today by Michigan Attorney General Dana Nessel.
The case involved Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton, two same-sex couples who had in 2017 directly approached two foster care and adoption agencies to adopt children whom the agencies had accepted through referrals from the Michigan Department of Health and Human Services (MDHHS). The agencies refused to serve the women. The couples then filed a lawsuit against the state, challenging MCHHS’ contracts with these taxpayer-funded agencies, St. Vincent Catholic Charities and Bethany Christian Services. They claimed they were rejected because they were same-sex couples and that the agencies’ actions violated the non-discrimination provisions in their contracts with MDHHS.
When AG Nessel took office at the beginning of 2019, she and her team of legal experts reviewed the case “and determined that MDHHS could be subject to liability on the claims of the plaintiffs,” her office said in a statement. She therefore “strongly recommended resolving the case on terms consistent with the law and existing agency contracts and that best serve the health, safety and well-being of children in need of state-contracted foster care case management and adoption services.”
Under the settlement agreement, MDHHS will “maintain federally required non-discrimination provisions in its foster care and adoption agency contracts.” It will also take action when a contracted agency accepts a referral and then refuses to work with LGBTQ individuals interested in fostering or adopting any of the children it has accepted. MDHHS will not, however, be required to take adverse action against an agency if the agency decides to not accept a referral from MDHHS consistent with current law. In return, the plaintiffs will dismiss their claims with prejudice and pay their own attorney fees and costs.
Although Michigan has enacted a law saying that child service agencies “shall not be required to provide ‘any services’ that conflict with its sincerely held religious beliefs,” the settlement notes that the term “services” specifically excludes “foster care case management services and adoption services provided under contract with the Department [MDHHS].”
“Discrimination in the provision of foster care case management and adoption services is illegal, no matter the rationale,” said Nessel. “Limiting the opportunity for a child to be adopted or fostered by a loving home not only goes against the state’s goal of finding a home for every child, it is a direct violation of the contract every child placing agency enters into with the state.”
“The guiding principle of the child welfare system is that the needs of children in care must always come first, and we are pleased to see that the State of Michigan recognizes the importance of that guiding principle,” said Denise Brogan-Kator, chief policy officer at Family Equality Council. “Attorney General Nessel makes clear Michigan’s commitment to uphold existing nondiscrimination protections. Furthermore, Nessel’s statement demonstrates that she understands that while religious freedom is a core American value, religious beliefs should never be used as an excuse to harm others, or in this case, to reduce the number of loving homes available to children in the Michigan child welfare system.”
This, and a win in federal court last year in Philadelphia in a similar case, give me hope that we can turn the tide of states (10 and counting) who are trying to implement discriminatory religious exemption laws and limit the number of homes available to children in need. It won’t be easy, but it may be possible.
Nessel, incidentally, is one of the many LGBTQ parents elected to office last November and is raising twins with her wife. She led the 2010 case in which a Michigan court first held that a non-biological parent in a same-sex couple could gain custody rights to their children. She also petitioned for the first second-parent adoptions in two counties. Most notably, in 2012, she led the case challenging the state’s bans on adoption and marriage for same-sex couples, a case later consolidated into Obergefell v. Hodges, which won federal marriage equality at the U.S. Supreme Court.
See her video statement on the case below.