Jacques: In adoption case, do what’s best for kids

Ingrid Jacques
The Detroit News

Michigan has thousands of children awaiting permanent homes.

The private agencies who partner with the state to work with these youth in foster care provide a vital service, and religious institutions are a significant part of this mission.

Yet the American Civil Liberties Union sued the state, since religious child placement agencies can decline to work with gay couples as doing so would violate their deeply held beliefs of marriage. Under a state law passed in 2015, the religious liberties of these institutions are protected, but they must refer LGBT couples to another agency that will work with them.

Democratic attorney general candidate Dana Nessel talks to residents at a town hall meeting in Southfield on October 12.

The federal suit was filed in 2017 against the state Department of Health of Human Services. Last year, St. Vincent Catholic Charities of Lansing became an intervenor-defendant, along with several children who had been helped by the agency. They are represented by legal religious liberty powerhouse Becket.

A new development in the lawsuit is that Attorney General Dana Nessel, after one month on the job, stepped into the case last week and is seeking a settlement.

More:Nessel plans settlement talks in lawsuit targeting same-sex adoption refusals

That’s alarming to religious freedom advocates, as well as the faith-based institutions serving this need in Michigan.

During her campaign, Nessel said she had no intention of enforcing the state law protecting these agencies.

In this June 25, 2013 file photo, Vin Testa of Washington waves a rainbow flag in support of gay rights outside the Supreme Court in Washington.

The state’s first openly gay attorney general, Nessel made a name for herself as the attorney on a case that ultimately made it to the Supreme Court, along with several others, overturning gay marriage bans nationwide in 2015.

There’s a lot at stake in this adoption lawsuit. The state works with roughly 100 private child placement agencies, and an estimated 25 percent are religious. Yet some of the largest institutions are faith-based, so they do a notable amount of the work to place the 13,000 children in Michigan foster care in both temporary and permanent homes.

For that partnership, the state offers adoption agencies a stipend — although it only covers a small portion of the overall services they provide.

To the ACLU, that doesn’t matter and it still views the practice as state-sponsored discrimination. You can be sure Nessel does, too.

The lawsuit claims that by partnering with religious institutions, the state “harms vulnerable children by denying them access to loving families that they desperately need and violates the Establishment and Equal Protection Clauses of the United States Constitution.”

Becket points out that one of the lesbian couples at the heart of the ACLU’s case lives closer to four other foster and adoption agencies that would have helped them, yet they specifically tried to force St. Vincent to work with them. The plaintiffs were denied by Bethany Christian Services as well. 

“ACLU’s lawsuit is not about helping kids,” according to a Becket brief on the case. “It’s about scoring cheap political points at the expense of kids. The only thing that the ACLU’s lawsuit would accomplish is fewer homes for children, especially minority children and those with special needs.”

Becket argues that the case is an affront to charities like St. Vincent on several levels in that it seeks to prevent faith-based organizations from having the same rights as secular ones to operate in the public square. In addition, Becket says the state doesn’t violate the establishment clause by partnering with religious agencies when it's seeking to address a critical public interest like finding homes for children.

If the ACLU prevails in this case, children in Michigan’s foster system will lose. Unless the Department of Health and Human Services can offer an alternative to working with faith-based entities, there’s simply not enough players in child placement to erase some of the most successful agencies.

Organizations like St. Vincent, who say they rely on state funding to provide foster and adoption services, will bow out of working with the state entirely to avoid going against their faith.

That’s a void that would be tough to fill.