Emilie Kao & Zachary Jones, October 31, 2017
The American Civil Liberties Union is suing Michigan over a law that protects the right of faith-based adoption agencies to follow their convictions.
November is National Adoption Awareness Month.
And how is the American Civil Liberties Union celebrating? By trying to reduce the number of agencies that place needy children with families.
Specifically, the American Civil Liberties Union is suing the state of Michigan over a 2015 law that allows religious adoption agencies to decline placing children with same-sex parents, in accordance with their religious convictions.
If the ACLU prevails in court, it would overturn the Michigan law and force numerous faith-based adoption agencies to choose between following their beliefs about marriage and family, or going out of business, leaving thousands of foster children out in the cold without families.
Despite the ACLU’s attacks, Michigan’s law is neither unconventional nor unprecedented. It simply preserves the status quo in which religious adoption agencies and foster families can serve children on equal terms with secular adoption agencies and foster families.
As Michigan state Rep. Andrea LaFontaine explained at the time of the bill’s enactment, “[The bill] simply preserve[s] the system we use today. It is not about who can and who cannot adopt a child. It’s about ensuring the most alternatives for people wanting to adopt a child.”
Similar laws have been adopted in six other states—Alabama, Mississippi, North Dakota, South Dakota, Texas, and Virginia. This lawsuit shows why a federal law, like the Child Welfare Provider Inclusion Act, is so needed to protect faith-based adoption providers.
High Stakes for Michigan Children
There are currently more than 13,000 children in the Michigan foster care system. Placing these orphaned and hurting children with permanent, loving families requires an all-out effort from a diversity of agencies.
These agencies work tirelessly to recruit foster and adoptive parents, and diversity aids their cause. Having a diversity of providers means there are more connections with communities and families who want to open their homes to children in need.
Considering the decline in the number of parents who are adopting, it’s difficult to understand why anyone would seek to limit the number of adoption agencies and foster care providers. Doing so would only further delay the day that each child in Michigan can join a “forever family.”
Yet that is exactly what the ACLU is doing in Dumont et al. v. Lyon. It is not just an attack on fairness within the adoption industry, but on the children who are served by religious adoption agencies.
As former president of the National Council for Adoption warned, “If all faith-based agencies closed … the adoption and child welfare field would be decimated, depriving thousands of children [of opportunities to] grow up in families.”
The ACLU’s Michigan lawsuit could create the same conditions that led to the shuttering of faith-based adoption and foster care providers in Massachusetts, Illinois, and the District of Columbia.
Groups in those states were compelled to either shut down or comply with government mandates that violate their sincerely held religious beliefs.
In the case of Illinois, over 2,000 children had to be moved to agencies around the state. Closing these institutions—which in Michigan make up 50 percent of all adoption and foster care services—did not help a single child find a home, or any couple find a child.
In fact, it hurt the most vulnerable children, as faith-based agencies—which tend to have the highest success in placing older children and disabled children with families—were unable to provide the required services.
In essence, Illinois scored a symbolic political point in the culture war at the expense of over 2,000 children.
The ACLU’s Claims
The ACLU argues that the Michigan law violates the First Amendment’s prohibition on government establishment of a religion.
But the legislation does not force the government of Michigan to establish a religion, nor does it favor one particular faith or doctrine. Instead, it allows faith-based groups to partner with the government to serve the larger community while remaining true to their beliefs.
In Trinity Lutheran v. Comer, the Supreme Court faulted the state of Missouri for expressly requiring Trinity Lutheran Church Child Learning Center “to renounce its religious character in order to participate in an otherwise generally available public benefit program, for which it is fully qualified.”
Here, as in Trinity Lutheran, excluding faith-based child welfare providers from working with the government solely because of their religious character would be unjustified discrimination.
The ACLU’s interpretation of the First Amendment’s establishment clause is wrong and misleading.
The ACLU also claims that the faith-based groups violate the equal protection clause of the 14th Amendment by discriminating on the basis of sexual orientation.
However, the preference of faith-based agencies for placing children with mothers and fathers is not based on sexual orientation. It is based on beliefs about the uniqueness of both sexes in parenting, and the value of giving a child a mother and a father wherever possible.
An agency could choose to place a child with a mother and father rather than with two women or two men (whatever their orientations) because the best two dads or two moms can’t replace both a mom and a dad.
This has nothing to do with the sexual orientation of the individuals. Even the Supreme Court has referred to the support for opposite-sex marriage as “decent” and “honorable,” and based on “reasonable” premises.
Same-sex couples in Michigan seeking to adopt are free to do so with dozens of agencies across the state. One of the plaintiff couples refused to take advantage of a secular agency that was only 11 miles away, insisting that a faith-based agency had to violate the tenets of its faith for them to adopt a child.
Contrary to the ACLU’s claims, there is no constitutional or practical reason why a faith-based agency must be forced to violate its religious beliefs when there are an ample number of alternatives across the state.
There should be enough room in Michigan for every qualified agency to provide adoption and foster care services.
Erasing a Win-Win Policy
Plaintiff Kristy Dumont said, “So many children in Michigan need homes. The state should do all that it can to make sure children in the foster care system have access to all available, qualified families.”
The people of Michigan agreed with Dumont and chose to have diversity in their child-placing provider options, passing legislation that preserves a variety of options for everyone.
If the ACLU has its way, it will remove this increasingly rare “win-win” legislative solution and prevent the agencies most successful at finding homes for hurting children from operating.
The courts should reject the ACLU’s attempt to impose ideological uniformity on adoption and foster care providers at the expense of Michigan’s most vulnerable children.
Emilie Kao is director of the Richard and Helen DeVos Center for Religion & Civil Society at The Heritage Foundation.
Zachary Jones is a member of the Young Leaders Program at The Heritage Foundation.
CCI Editor’s Note: Catholic Charities and Lutheran Family Services in Illinois have already been forced out of adoption services because of similar legislation.