Last Thursday, a circuit judge appointed by former President George W. Bush granted a preliminary injunction forcing the state of Michigan to continue using taxpayer money to fund foster care and adoption agencies that discriminate against same-sex couples. The ruling leaves the approximately 14,000 children in Michigan’s foster care system, many of whom are certainly LGBTQ themselves, potentially waiting longer for homes to call their own.
The case, Buck v. Gordon, was filed against the Michigan Department of Health and Human Services by St. Vincent Catholic Charities to stop the department from enforcing a settlement brokered earlier this year by Michigan Attorney General Dana Nessel in Dumont et. al v. Gordon. Dumont was brought by the ACLU of Michigan on behalf of Kristy and Dana Dumont, who were turned away from two separate, taxpayer-funded agencies that cited their religious beliefs as the reason for discriminating against the couple.
“(The agencies that denied the Dumonts were) basically saying to same-sex couples, ‘You don't have the same menu of opportunities to be a foster parent as other couples do,” ACLU of Michigan staff attorney Jay Kaplan told Daily Kos. Kaplan has headed the organization’s LGBTQ project since its founding in 2001.
Under the settlement, Michigan’s Department of Health and Human Services was slated to pull funding from agencies that discriminate against prospective LGBTQ foster or adoptive parents.
Michigan law doesn’t bar same-sex couples from adopting or becoming foster parents. However, in the wake of the 2015 Obergefell U.S. Supreme Court decision recognizing the marriage rights of same-sex couples, Michigan’s Republican-led legislature and then-Republican Gov. Rick Snyder rushed to pass legislation allowing faith-based charities to use their choice of religion as a reason to turn those couples away. Michigan is one of 10 states that allows faith-based discrimination in foster care and adoption.
Kaplan called allowing state-funded agencies to discriminate based on religious choice “a very dangerous, slippery slope.”
“What about an agency that believes that a mother cannot work outside the home?” Kaplan asked, adding that another agency’s choice of religion might forbid divorce—and that agency might choose to turn away a couple where one or both of the partners are remarried. “How far along do you go with this?”
Kaplan is right that faith-based objections to prospective foster or adoptive parents haven’t stopped at same-sex couples. Within the past year, the Trump administration has backed state efforts to allow religion-based agencies to turn away Jewish and Catholic couples.
Discrimination against same-sex couples is hardly rare in foster care and adoption. A 2018 report by the Center for American Progress cited studies done in 2011 stating that nearly one-half of the study’s gay and lesbian prospective parents had faced bias or outright discrimination during the adoption process. According to the report, in 2017 there were approximately 443,000 children in foster care across the U.S. More than 50,000 U.S. children are adopted each year, and about 20,000 youth age out of the system without finding a permanent family.
In addition to promoting religion-based discrimination and potentially putting children at risk of languishing in the foster care system, Kaplan explained that laws allowing discrimination based on an agency’s choice of religion have an additional issue: they could well violate the First Amendment to the U.S. Constitution. “If these agencies are acting as agents on behalf of the state (because they are funded by the state) is not then the state putting forth a particular religious viewpoint—and how does that intersect with our First Amendment?” Kaplan asked.
Attorney General Dana Nessel’s spokesperson Kelly Rossman-McKinney told Daily Kos that Nessel’s office is currently reviewing the case.
Dawn Wolfe is a freelance writer and journalist based in Ann Arbor, Michigan. This post was written and reported through our Daily Kos freelance program.