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September 29, 2017

Lawsuit Challenges Adoption Agencies That Refuse to Work with Same-Sex Couples

2015 was an eventful year for gay rights in Michigan. Most notably, litigation concerning Michigan's ban of same-sex marriage reached the United States Supreme Court, in Obergefell v. Hodges. In a June 26, 2015 decision, a 5-4 Court held that all Americans have a fundamental right to marriage and that, by denying this fundamental right, Michigan's ban violated both the due process and equal protection clauses of the Fourteenth Amendment of the Constitution. As a result, same sex-marriage became legal in Michigan and across the United States.

Around that same time, and in anticipation of the Supreme Court's ruling in Obergefell, the Michigan legislature passed a series of bills designed to allow child placing agencies (i.e., adoption and foster care agencies) to refuse to place children with same-sex couples on the basis of "sincerely held religious beliefs." On June 11, 2015, the morning after these bills were passed by the Senate, Governor Snyder signed them into law.

Now, a new lawsuit filed by the American Civil Liberties Union, Dumont v. Lyon, challenges the application of these "religious objection" laws. The complaint, filed in the Federal District Court for the Eastern District of Michigan, claims that Michigan's Department of Health and Human Services violated the Constitution by using taxpayer money to fund child placing agencies that use religious criteria to screen prospective foster and adoptive parents for children in the foster care system and turn away qualified families on the basis of sexual orientation.

As the lawsuit explains, the Department of Health and Human Services is responsible for the children within Michigan's foster care system, who have typically been removed from their families by Child Protective Services because of abuse or neglect. If these children cannot be reunited with their families, DHHS tries to find them a permanent home. In order to carry out this task, DHHS contracts with licensed "child placing agencies," who perform much of the on-the-ground foster care and adoption work. Some of these agencies refuse to work with same-sex couples on the basis of their religious beliefs.

The suit claims that using taxpayer money to fund organizations that apply religious criteria while performing a government function is a violation of the establishment clause of the First Amendment to the Constitution. The establishment clause prohibits Congress and the states from making a law "respecting an establishment of religion." The suit also claims that using public money to fund child placing agencies that discriminate against same-sex couples violates the 14th Amendment's equal protection clause, which provides that "no state shall .. deny to any person within its jurisdiction the equal protection of the laws."

The plaintiffs in the suit include two same-sex couples who were denied the opportunity to adopt children from the foster care system by agencies that refused to work with them because of their sexual orientation. Another plaintiff in the suit was a part of Michigan's foster care system as a teenager and now joins this suit as an adult taxpayer, objecting to her tax dollars being used to "underwrite and endorse religious beliefs to which she does not subscribe." The defendants in the suit are agents of the Michigan DHHS and the Michigan Children's Services Agency, in their respective official capacities.

In addition to violating the constitutional rights of prospective parents and taxpayers, the lawsuit argues that allowing state funded agencies to refuse to place children with same-sex couples harms the children, who might have to wait longer or miss out entirely on finding a permanent, loving home.

The lawsuit makes clear that it does not challenge private adoption agencies' right to use religious criteria when providing private adoption services or using non-public money. The suit is strictly limited to the provision of government services and use of public money.

The lawsuit was filed on September 20, 2017, but it is not clear whether it has been served on the defendants yet. Once the defendants are served, they will have 21 days to file an answer or other responsive pleading. However the defendants respond, it should shed some light on how the State of Michigan plans to defend its policies at issue this case.

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