The state of Michigan must continue contracting with child service agencies that discriminate against same-sex couples, according to the settlement this week of a long-running case whose outcome rested on a 2021 U.S. Supreme Court decision. The state’s Children’s Services Agency nevertheless reaffirmed its commitment to supporting LGBTQ people who want to foster or adopt or are already doing so.
The Settlement
In the preliminary settlement of a lawsuit brought by St. Vincent Catholic Charities, the Michigan Department of Health and Human Services (MDHHS) said yesterday that it was bound by the U.S. Supreme Court’s 2021 ruling in Fulton v. Philadelphia. which found that the city of Philadelphia could not refuse to contract with a faith-based foster care agency that refused to certify same-sex parents as foster parents. The Fulton decision “limits MDHHS’s ability to enforce its non-discrimination policy under certain circumstances,” MDHHS said in a statement.
The story in Michigan begins with an earlier case in which two same-sex couples were turned away from two foster care and adoption agencies, St. Vincent Catholic Charities and Bethany Christian Services. The agencies cited a state “religious exemption” law that said their religious beliefs allowed them to do so. (Michigan is now one of 11 states with such a law.) The couples then filed a lawsuit against the state, challenging MCHHS’ contracts with these taxpayer-funded agencies. 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 2019, 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. Then in May 2019, St. Vincent sued the state, claiming it had a constitutional right to violate that requirement. In September 2019, the U.S. District Court for the Western District of Michigan agreed with St. Vincent and issued a preliminary injunction allowing the agency to maintain its state contract and continue refusing to work with same-sex couples and unmarried people while the case was fully litigated. (See my earlier post for more details of that decision.)
Now, a preliminary settlement in the St. Vincent case affirms that Michigan cannot terminate St. Vincent’s contracts because of the agency’s discrimination against same-sex and unmarried people. The state must pay the agency $550,000 for attorney fees and costs. The district court judge must still approve the settlement in order to finalize it.
MDHHS seems not entirely pleased with the outcome, and reiterated its commitment to LGBTQ families. Demetrius Starling, executive director of the MDHHS Children’s Services Agency, said in a statement:
While this outcome is not what we hoped for, we are committed to providing support to the many members in the LGBTQ+ community who want to open their hearts and their homes. Many children who have experienced the trauma associated with abuse and neglect need temporary foster homes while we work to reunify them safely with their parents. A smaller number of youth need adoptive homes. We are so appreciative of all families that step up to help these children—no matter their orientation or gender identity and expression. MDHHS recognizes, values, affirms and appreciates the significant contributions made by the LGBTQ+ families caring for children in foster care and those choosing to adopt. We could not do this work without them.
MDHHS will soon announce plans to further build upon its engagement with LGBTQ+ families, the statement noted.
Attorney General Dana Nessel, a lesbian mom herself, who in a previous job led several groundbreaking cases in support of queer parents, said, “I applaud MDHHS’s commitment to supporting LGBTQ+ families and our state’s most vulnerable children. All children deserve the best opportunity possible to be placed with a loving and nurturing forever family, and it remains my honor to represent an agency with those enduring values.”
Going Forward
LGBTQ people are not the only targets of religious exemption laws. A Jewish couple recently sued the state of Tennessee, saying that a state-funded foster care and adoption program turned them away because they are Jewish. And it’s not just the adults who suffer in these circumstances. Religious exemptions hurt children in need of homes, stopping otherwise eligible people from becoming foster or adoptive parents or making the process longer than it needs to be (e.g., if they must travel further to find an agency that will certify them).
Some people have argued that enforcing non-discrimination protections would force faith-based agencies to close and make it harder to find homes for children, but as Stacey Stevenson, CEO of Family Equality, noted at the introduction of the John Lewis Every Child Deserves a Family Act (ECDF) last May, “The problem is the shortage of families, not agencies.” The ECDF would prohibit discrimination in foster care and adoption on the basis of sexual orientation, gender identity, marital status, or religion.
If you haven’t yet contacted your members of Congress and asked them to sponsor the ECDF and the Equality Act (which would prohibit discrimination on the basis of sex, sexual orientation, and gender identity in foster care, adoption, and a wide range of other services), please do so now.
