If you are a same-sex couple in Michigan looking to take on an adoptive child into your family, you could feel like state-funded religious adoption agencies are closing doors in your face. But a recent settlement and a series of bills in the Michigan legislature could turn things around, opening the state up to a broader definition of parent.
2015: Michigan Gives Adoption Agencies License to Discriminate
In 2015, Michigan passed a series of laws making it legal for state-funded adoption agencies to turn people away based on their organization’s religious beliefs. The law passed shortly after Obergefell v Hodges made it legal for gay and lesbian couples to get married across the country. While the statutes did not specifically describe LGBT couples, many within the community felt they were the intended target of the laws.
These laws became effective September 5, 2015. The most relevant parts said:
“If the department makes a referral to a child placing agency for foster care case management or adoption services under a contract with the child placing agency, the child placing agency may decide not to accept the referral if the services would conflict with the child placing agency’s sincerely held religious beliefs contained in a written policy, statement of faith, or other document adhered to by the child placing agency. Before accepting a referral for services under a contract with the department, the child placing agency has the sole discretion to decide whether to engage in activities and perform services related to that referral”MCL 722.124f.
“(2) To the fullest extent permitted by state and federal law, a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs contained in a written policy, statement of faith, or other document adhered to by the child placing agency.MCL 722.124e.
“(3) To the fullest extent permitted by state and federal law, the state or a local unit of government shall not take an adverse action against a child placing agency on the basis that the child placing agency has declined or
will decline to provide any services that conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs contained in a written policy,
statement of faith, or other document adhered to by the child placing agency.”
In other words, state-funded, faith-based adoption agencies could refuse to help place children, or work with prospective parents, if doing so went against their organization’s stated religious tenants. The law prevented the state from taking any action against an agency in that position, including considering this as a reason to cancel or not renew a contract to place children through the agency.
Same-Sex Couples Sue State for Adoption Services
In September 2017, after adoption agencies started turning away same-sex couples, some of them went to the American Civil Liberties Union of Michigan (ACLU of Michigan) for help. They sued the State of Michigan, the Director of the Michigan Department of Health and Human Services, and the Michigan Child Services Agency, saying the 2015 law was unconstitutional. St. Vincent Catholic Charities, which operates a faith-based adoption agency intervened in the case to defend the statute granting them the right to discriminate.
Specifically, the ACLU of Michigan argued:
“Allowing state-contracted agencies to screen out prospective families based on religious criteria not only harms the children most in need, it is also unconstitutional. It violates the First Amendment’s Establishment Clause, which bars the use of religious criteria in the provision of government services like foster care and adoption services for children in state custody. And it violates the Equal Protection Clause by discriminating against same-sex couples.”Leslie Cooper, Deputy Director, ACLU LGBT & HIV Project, Same-Sex Couples Are Being Turned Away from Becoming Foster and Adoptive Parents in Michigan. So We’re Suing.
The complaint also described how the State of Michigan was violating federal non-discrimination laws by allowing its contractors to turn away adoptive couples based on their sexual orientation.
Dana Nessel, Michigan Attorney General Agrees with Couples on Discrimination Claims
Then, in 2018, Democratic candidates won the Michigan races for Governor, Secretary of State, and Attorney General. Dana Nessel, the state’s new Attorney General, had previously represented April DeBoer and Jane Rowse, the Michigan plaintiffs in Obergefell v Hodges, and adoptive parents themselves. Nessel understood how the 2015 law was affecting Michigan families and agreed with the couples and the ACLU of Michigan that was unconstitutional.
On March 22, 2019, the couples settled the lawsuit with the State defendants. They agreed:
- That the adoption service providers’ child placement contracts included and would continue to include non-discrimination clauses that include sexual orientation and gender identity or expression.
- That those clauses would include turning away LGBTQ individuals or same-sex couples for foster and adoption placements, training, or home studies.
- That the State would enforce the non-discrimination clauses in its contracts, including terminating the contracts if agencies refused to serve LGBTQ individuals or same-sex couples.
- The State would provide an online complaint form for couples turned away in violation of the contracts.
But the settlement did not overturn the statute. That remained the law of the land.
Litigation Over Same-Sex Couples’ Adoption Rights Continues
It didn’t take long for St. Vincent Catholic Charities and other faith-based adoption agencies to respond. They have filed their own lawsuit against the state, arguing that enforcing the anti-discrimination portions of their contracts qualify as “adverse actions” under the Michigan statutes. They too relied on the First Amendment, claiming the agencies were being discriminated against because of their religion.
Michigan Legislature Considers Reversing Adoption Law
While the faith-based agencies’ lawsuit makes its way through the courts, others have taken the issue back to the legislators in Lansing. On April 17, 2019, (two days before St. Vincent filed its complaint), Michigan Representatives Tim Sneller (D – Grand Blanc), Jon Hoadie (D – Kalamazoo), and Julie Brixie (D – Lansing); and Senator Jeremy Moss (D – Oakland), Dayna Polehank (D – Wayne), and Jim Ananich (D – Genesee) sponsored bills to repeal the 2015 law. They sought to make clear that state-funded adoption agencies cannot discriminate against LGBTQ parents based on the organization’s religious beliefs. The bills include HB4470, HB4471, HB4472, and SB0272, SB0273, SB0274. The bills have been referred to the Committee on Government Operations in the House and the Committee on Families, Seniors, and Veterans in the Senate.
Given that Republicans control both legislative houses, these bills may not become law any time soon. That means same-sex couples could continue to face adoption discrimination until a judge decides whether the 2015 law is unconstitutional. But at least now they know the state Attorney General is on their side.
Lisa J. Schmidt is an adoption attorney at Schmidt & Long, PLLC, in Ferndale, Michigan. She focuses on providing adoption and family law help to LGBT families in Southeast Michigan. If you need help bringing your family together under the law, contact Schmidt & Long to schedule an initial consultation today.