Detroit — A federal judge is weighing arguments over whether the state of Michigan is sanctioning discrimination by allowing faith-based adoption agencies it contracts with to refuse to place foster children with same-sex couples.
On Thursday, U.S. District Judge Paul Borman was asked to dismiss a lawsuit filed by attorneys from the American Civil Liberties Union and the ACLU of Michigan that challenges religious discrimination against same-sex couples in Michigan’s public child welfare system.
Michigan permits state-contracted, taxpayer-funded child placing agencies to reject same-sex couples as foster or adoptive parents based on the agencies’ religious objections to such families, ACLU attorneys allege.
The lawsuit is against the state — not the agencies themselves, such as St. Vincent Catholic Charities, which are under contract with the Michigan Department of Health and Human Services.
Attorney John J. Bursch, who represents the state of Michigan and Nick Lyon, director of the Michigan Department of Health and Human Services, pointed to a 2015 state law that says child placement agencies shall not be required to provide services that conflict with their religious beliefs.
"The law protects the right of faith-based agencies to partner with the state in its work," Bursch told Borman on Thursday. "Whether it is hospitals or relief agencies, they aren't required to leave their religious beliefs at the door to participate."
ACLU attorney Leslie Cooper told Berman the state of Michigan is responsible for children in foster care and when it delegates that responsibility to an agency, it cannot use religious criteria in performing services.
"That is actually happening right now," Cooper said. "We are challenging a state practice directly. There is no way to view this other than the work of the state."
The use of religious screening to exclude same-sex couples violates both the establishment and equal protection clauses of the U.S. Constitution, Cooper said, and it harms children who are awaiting placement.
There are 13,000 children in the Michigan foster care system and hundreds are awaiting placement.
Stephanie Barclay, an attorney with Becket, a nonprofit, public-interest law firm that represents St. Vincent, told Borman the plaintiffs in the case, which are two same-sex couples from Michigan, could go to another agency to seek adoption.
"St. Vincent isn't trying to prevent any couple from adopting," she said. "They are saying we cannot provide a written endorsement of your relationship that contradicts with our religious beliefs."
The ACLU is asking Borman to enter an order that prohibits the state from entering into contracts with or providing taxpayer funding to private child placing agencies that exclude same-sex couples from consideration as foster or adoptive parents.
It is also seeking an order directing the state to ensure that lesbian and gay individuals and couples are treated the same as heterosexual individuals and couples by state-contracted child placing agencies.
The stigma that follows the rejected same-sex couples is hard to bear, Cooper said.
"The message they get is your kind is unsuitable to be parents," she said.
Borman said he would take the arguments under advisement and issue an opinion at a later date.
Borman noted that the agencies such as St. Vincent have contracts "in the millions" with the state of Michigan.
Documents provided by the ACLU show the state entered into a three-year contract with an option year with Bethany Christian Services for different amounts including up to $6.8 million and with St. Vincent up to for $4.1 million.
Barclay countered by saying the agencies operate at a loss.
"If the agency sees a same-sex couple, does it say go somewhere else?" Borman asked Barclay.
"There is a range of reasons they can be referred elsewhere," Barclay said.
"But they get millions of dollars to do it. ... That's a lot of money," Borman added.
Two couples, Kristy and Dana Dumont of Dimondale and Erin and Rebecca Busk-Sutton of Detroit, each sought to adopt a child out of foster care in Michigan and both were rejected by state-contracted child placement agencies based on religious objections to same-sex couples.
Erin Busk-Sutton said she and her wife attempted to adopt in 2017 with Bethany and Catholic Charities in Michigan and could not get any services once she identified as being part of a same-sex couple.
The Bethany representative told Erin that "same-sex couples aren’t our area of expertise” and offered to recommend a different child-placing agency.
"It was devastating and frustrating," she said. "The best interest of children are not being met by turning us away."
Five states — Alabama, Texas, Virginia, North Dakota and South Dakota — have passed laws that allow state-contracted child placing agencies to refuse to accept prospective foster or adoptive families based on religious objections, ACLU officials said.
Outside court on Thursday, Barclay said several same-sex couples have been certified for adoption by other agencies and were still able to adopt children in St. Vincent’s care.
She said the lawsuit seeks to shut down St. Vincent solely because of its religious beliefs about marriage.
“Shutting down one of the most effective adoption agencies in the city helps no one and instead hurts thousands of vulnerable children," she said.