Jacques: When competing liberties collide

Ingrid Jacques
The Detroit News

Shamber Flore owes the life she has now to St. Vincent Catholic Charities. Flore, a young woman who lives near Lansing, is a fierce advocate for the adoption agency that brought her and siblings out of foster care into a stable, loving home 13 years ago.

And now that the American Civil Liberties Union has brought a lawsuit against the state of Michigan for working with faith-based adoption agencies like St. Vincent, Flore and other youth like her are standing up to defend the work these organizations do.

“...In my new family, I’ve learned what love feels like," Flore wrote in these pages in March. "Every child in foster care deserves to find a loving home like I did.” 

At the heart of this lawsuit is whether some private adoption agencies have a right to deny service to same-sex couples seeking to foster or adopt children in the state system. This lawsuit is part of a growing clash in the courts between competing liberties: religious freedom and civil rights. The U.S. Supreme Court just decided 7-2 in favor of a Colorado baker who declined to bake a cake for a same-sex wedding. While a narrow decision, the court still offered a win for free speech and religious liberty.

In this June 4, 2018 photo, American Civil Liberties Union activists demonstrate in front of the Supreme Court in Washington. The Supreme Court is ordering Washington courts to take a new look at the case of a florist who refused to provide services for the wedding of two men because of her religious objection to same-sex marriage.

This case is different, however. While the adoption agencies are private, they contract with the state and take taxpayer-funded subsidies to do their work. And while the state money only covers a fraction of the services they provide, it’s those public dollars and the perceived discrimination that the ACLU and other detractors take issue with.

Michigan passed a law a few years ago, giving longstanding guidelines that protected the religious freedom of these agencies the cover of law. Those institutions are obligated to recommend gay couples to another agency. But in passing the law, the state caught the attention of the ACLU, which followed up with this federal case on behalf of several same-sex couples. A handful of other states have similar policies.

Oral arguments in the case took place Thursday in Detroit. The Becket law firm is representing St. Vincent, as well as several adopted children and foster families impacted by the lawsuit. Attorneys filed a motion to dismiss the suit, calling it “needless.”

Michigan has more than 100 private adoption agencies, with roughly a quarter of those religiously affiliated. But some of the largest providers are faith-based.

“The important dividing line here is the use of tax dollars,” says West Michigan GOP strategist Greg McNeilly.

This issue is personal for McNeilly, who has now adopted two children with his husband. Yet it wasn’t an easy process for the couple to adopt as they were turned down by some of the state’s largest religious agencies precisely because they were in a same-sex marriage. McNeilly says the process was much longer -- and more costly -- for them.

“Private organizations have a right to run adoption services where they pick the clientele, whoever they choose,” McNeilly says. “But when you use public funds, and say one family is not qualified, that is discrimination.”

There's the rub. 

Mark Rienzi, president of Becket and a lawyer involved with the case, says that in working with religious agencies, the state is not “establishing religion.” He points to how the government works with religious hospitals and schools, as an example of other such partnerships. Michigan's collaboration with these adoption agencies offers an important service to the 13,000 children in the foster care system.

Many of the faith-based agencies have said they couldn’t afford to do this work without state subsidies, and that if the ACLU prevails, they may have to bow out of the child placement service altogether.

“There are more foster kids than agencies to go to,” says Rienzi. “This is an all-hands on deck situation.”

Now that the Supreme Court has upheld gay marriage, Rienzi sees this case as a targeted effort “to use the courts to crush” all opposition, regardless of the reasons.

It would be a shame to see any agency that exists to help children like Flore find permanent homes go away.

But as McNeilly says, “If you take Caesar’s change, you have to dance to his tune.”