Adoption agency sues state over new gay adoption rules

Beth LeBlanc
The Detroit News
Michigan Department of Health and Human Services Director Robert Gordon, left, talks with Lt. Gov. Garlin Gilchrist before the meeting.

An adoptive mother, a former foster child, and a Michigan faith-based adoption agency are challenging a recent state settlement that bans state contracts with foster and adoption agencies that refuse to work with gay couples.

St. Vincent Catholic Charities, former foster child Shamber Flore and Melissa Buck, a mother of five special needs kids adopted through St. Vincent, filed Monday a federal lawsuit. They alleged the new rules violated the group’s First Amendment rights to free exercise of religion and free speech, the group's 14th Amendment rights to equal protection and those rights guaranteed under the Religious Freedom Restoration Act. 

The agency is represented by religious liberty group, Becket Law.

The lawsuit is filed against Michigan Department of Health and Human Services Director Robert Gordon, Children's Services Agency Director Herman McCall, Attorney General Dana Nessel, the federal Health and Human Services department and its secretary, Alex Azar. 

The lawsuit asks the court to stop the state from ending contracts with agencies that, because of their religious beliefs, refer same-sex couples to other adoption agencies. The lawsuit also requests nominal damages and legal costs.

Adoption agencies have "sole discretion" to invoke their religious beliefs when deciding whether to accept a state referral, but those agencies forfeit that discretion when they accept a referral, Nessel spokeswoman Kelly Rossman-McKinney said. 

"If you’re doing business with us, and in this case the business is placing children, then you cannot discriminate," Rossman-McKinney said.

In a Monday statement announcing the lawsuit, Buck, of Holt, said her family still relies on the support of St. Vincent “in every step of our journey together as a family" and could have problems should the family look to adopt siblings of their adopted children through St. Vincent in the future.

“We are hopeful that the courts will step in, do the right thing and allow faith-based agencies to continue to help vulnerable families like mine,” Buck said.

In March, Nessel reached a settlement with the American Civil Liberties Union of Michigan and two gay couples who had sued the state when they were rejected by agencies with religious objections to same-sex couples. The agencies were St. Vincent Catholic Charities and Bethany Christian Services.

The settlement required the state Department of Health and Human Services to maintain non-discriminatory provisions in foster care and adoption agency contracts by ending state contracts with agencies if they discriminate against same-sex couples.

Because the settlement was between the state attorney general's department and the ACLU, St. Vincent as an intervenor in the lawsuit had no option but to file a separate action, said Nick Reaves, a lawyer for Becket.

Without the state contract, St. Vincent would be forced to close its doors and the settlement could have a similar effect on "any other organization that shares their religious beliefs," Reaves said. He added that he is not aware of any contracts being dropped so far in light of the March settlement. St. Vincent was responsible for roughly 80 children in mid-February.

“Faith-based agencies like St. Vincent consistently do the best work because of their faith, and we need more agencies like them helping children — not fewer,” Becket President Mark Rienzi said in a statement.

Catholic agencies make up a small portion of the 58 private agencies that contract with the state for adoption and foster care services, proving "there really isn't any access problem" for gay couples seeking an agency through which they can adopt, Reaves said.

For example, in Ingham County, 16 other adoption agencies besides St. Vincent are available to parents seeking to adopt, he said. 

Further, a same-sex couple still can adopt a child within St. Vincent after receiving a home study and becoming a certified pre-adoptive home through a different agency, St. Vincent said in its lawsuit.

Agencies already can refer couples to different adoption agencies for various reasons, including geography, wait lists or a family's search for a specific type of child. But, under the new policy, "the only justification for a referral that is now impermissible is a religious objection to same-sex marriage," the lawsuit said.

Nessel’s office maintained a 2015 law passed by the Republican-led Legislature only protected faith-based agencies that declined to provide services based on religion when it came to “private action.” The protection did not carry over into state-contracted services, she argued.

Such a conclusion is in "serious tension" with previous interpretations of the law and the language of the law itself, Reaves said. 

Republican former Attorney General Bill Schuette had defended the state against the ACLU lawsuit when it was filed in 2017. But even before taking office Jan. 1, Nessel had signaled she would not continue to support Schuette's position on the lawsuit.

As of mid-February, St. Vincent and Bethany were responsible for nearly 10% of the more than 13,000 children under state supervision.       

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