Michigan's Adoption Conundrum

 This guest post is from Cassia Barker, Regent Law 2L:

          In Michigan, approximately 10,000 children rely on the state’s foster care system for immediate care and for the opportunity of future familial safety. Michigan’s Department of Health and Human Services cares for these children by funding agencies that recruit and vet foster homes. MCL 722.124e states that agencies contracted with the State cannot be required to provide services that conflict with their sincerely held religious beliefs.

          In 2017, plaintiffs brought a suit against the State, asserting that the State’s contract with agencies that used religious criteria to screen hopeful foster parents violated the plaintiff’s rights under the Establishment Clause and Equal Protection Clause. The plaintiffs, two same-sex couples who had been denied service by a Catholic agency, acknowledged the agency’s right to practice its religious views but asserted that the State had caused them a stigmatic injury by allowing the agency to perform a discriminatory practice that it, itself, could not legally perform. The court denied the defendant’s request to dismiss the case, and the two parties reached a settlement in which the State agreed to ensure that agencies it contracted with would not perform discriminatory practices. (Dumont v. Lyons, 2017)

          The Catholic agency, St. Vincent Catholic Charities, would bring its own suit against the State in 2019, arguing that the settlement agreement reached in Dumont v. Lyons violated their right to practice their religious beliefs. Due to the Supreme Court’s ruling on a similar issue in Pennsylvania in 2021 (Fulton v. City of Philadelphia, 2021) which held that refusing state contracts to agencies that would not certify same-sex couples was unconstitutional, the State also settled with St. Vincent, agreeing to not enforce their previous settlement against them. (Buck v. Gordon, 2019) In 2022, the State entered into a consent judgment that allows faith-based discrimination in adoption agencies’ screening processes within certain parameters.

          This legal back-and-forth highlights the tension placed on the State as a fundamentally secular entity that cannot discriminate against sincerely held religious beliefs or against individuals on the basis of their sexual orientation. What does the State do when a religious group’s beliefs require discrimination against a group of people, and yet the government cannot endorse that discrimination? Since adoption—for some, the only way to form a family, either as child or parent—is not recognized as a legal right, is some level of discrimination in the adoption process just a reality that hopeful parents and children must accept? Unfortunately, the present circumstance is Michigan replies, “it depends.”

          Adoption is a biblical concept used by God Himself to place family-less children safely in forever families, from Moses (Exodus 2), to Esther (Esther 1), to every single one of us in our eternal family (Ephesians 1), restoring a family to a child who needs one. Michigan and every state could benefit from that great picture of family restoration.