Taxpayer-funded adoption and foster care agencies in Michigan may use their religious beliefs as a reason to discriminate against same-sex and unmarried couples, a federal judge ruled yesterday, overturning a settlement that had been reached earlier this year.
The story begins with an earlier case brought by Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton, two same-sex couples who had in 2017 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, citing a state “religious exemption” law that said their religious beliefs allowed them to do so. (Michigan is now one of ten states with such a law.) 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.
In March of this year, the state and the couples reached a settlement and the state said it would require all taxpayer funded, state-contracted child welfare agencies to accept all qualified families, including same-sex couples. The state’s position was guided by state Attorney General Dana Nessel, who had spoken out against the religious exemption law during her 2018 election campaign, and who worked with other legal experts to develop the settlement, consistent with current law.
Then in May, St. Vincent Catholic Charities sued the state, claiming it had a constitutional right to be exempt from the state’s requirement to accept all qualified families while still holding a taxpayer-funded contract. That’s the case District Court Judge Robert J. Jonker ruled on yesterday, agreeing with St. Vincent.
The beginning of his ruling feels disingenuous. “This case is not about whether same-sex couples can be great parents. They can,” he wrote. “No one in the case contests that. To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State.” That placement has occurred, however, when same-sex couples were certified by another agency and used the Michigan Adoption Resource Exchange (“MARE”), which lists all children seeking adoption in the state, to find a child being cared for by St. Vincent. St. Vincent will allow those children to be adopted by the same-sex couple. It won’t, however, certify same-sex couples (or unmarried people) as eligible to become adoptive parents in the first place.
He then continues, “What this case is about is whether St. Vincent may continue to do this work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman,” and tells us that, “Based on that belief, St. Vincent has exercised its discretion to ensure that it is not in the position of having to review and recommend to the State whether to certify a same-sex or unmarried couple.” Instead, it will refer those cases to other agencies willing to work with same-sex and unmarried couples.
That may on first glance seem not so bad—but it can also mean unnecessary delays in certifying parents, and thus in finding homes for children in need. It’s also, plain and simple, discrimination. Remember that St. Vincent is operating under a state contract, taking taxpayer funds.
In the ruling, Junker cited the Masterpiece Cakeshop case, in which the U. S. Supreme Court said a Colorado baker could cite his religious beliefs as a reason not to bake a wedding cake for a same-sex couple. He also brought up Nessel’s actions and beliefs. During her campaign, he noted, “She made it clear that she considered beliefs like St. Vincent’s to be the product of hate. She stated that the 2015 law seeking to protect St. Vincent’s practice was indefensible and had discriminatory animus as its sole purpose.” Her statements “raise a strong inference of a hostility toward a religious viewpoint” and her actions were a “targeted attack on a sincerely held religious belief.” The settlement she brokered earlier this year “put St. Vincent in the position of either giving up its belief or giving up its contract with the State.”
Never mind that St. Vincent’s own actions were a targeted attack on same-sex and unmarried people, nor that the “position” St. Vincent’s was put in could also be seen as a choice between adhering to state nondiscrimination laws and not holding state contracts. Additionally, Jay Kaplan, a staff attorney for the ACLU of Michigan, told the Detroit News, “The judge’s opinion failed to note that some of those comments were made by Nessel in her capacity as a private citizen and others were taken out of context.”
Nessel 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.
This ruling, from the U.S. District Court for the Western District of Michigan, is a preliminary injunction allowing St. Vincent to maintain its state contract and continue refusing to work with same-sex couples and unmarried people while the case is fully litigated. In a separate case earlier this year, a Catholic child service agency in Philadelphia was denied a similar injunction by both the U.S. District Court for the Eastern District of Pennsylvania and a three-judge panel of the 3rd U.S. Circuit Court of Appeals. That case could now be appealed to the U.S. Supreme Court—and the Michigan case could ultimately find its way there, too. The Supreme Court last August had denied an emergency petition from the Philadelphia agency to intervene in that case, with Justices Clarence Thomas, Samuel A. Alito Jr., and Neil Gorsuch dissenting—but that was before President Trump’s most recent pick for the court, Brett Kavanaugh, took his seat. Buckle your seatbelts, folks—and support the Every Child Deserves a Family campaign, which is fighting against religious exemption laws in child services.