The 22-page complaint was filed Wednesday in federal court in Michigan by the American Civil Liberties Union and the ACLU of Michigan on behalf of two same-sex couples denied service by Catholic adoption agencies and a Michigan resident raised in foster care who believes she would have been unable to find home placement if the law were in place years ago.
The litigation contests the statue, which was signed into law in 2015 by Michigan Gov. Rick Snyder, violates the Establishment Clause of the First Amendment by favoring particular religious views and the Fourteenth Amendment for denying equal protection to LGBT families.
“The State’s practice of allowing religious-based exclusions of prospective foster and adoptive parents reduces placement options for the most vulnerable children,” the complaint says. “As a result, some children may be placed with families that are less well-suited to meet their needs, some children may be separated from siblings and some children may age out of foster care without ever becoming part of a family.”
One plaintiff couple in the lawsuit, Kristy and Dana Dumont, are married and reside in Dimondale, Mich. In July 2016, Kristy called St. Vincent’s Catholic Charities in Lansing and said that she and her spouse wanted to adopt a child from foster care, but was told the agency does not work with same-sex couples. Kristy made a second attempt with the agency in March 2017 as well as the Bethany adoption agency, but was similarly rebuffed.
“We are ready to open our home and our hearts to a child, but were rejected because we’re a same-sex couple,” Kristy Dumont said in a statement. “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 other plaintiff couple, Erin and Rebecca Busk-Sutton, have been together as a committed couple for eight years and married in 2014. In May, Erin called Bethany in Madison Heights to inquire about adopting a child from the foster child system, but the representative told her same-sex couples “aren’t our area of expertise” and referred her to another agency in Ann Arbor. When Erin explained that would be far away, the Bethany representative said again “same-sex couples aren’t our area of expertise” and she “didn’t think they would have a good experience” with the agency.
Another plaintiff, Jennifer Ludolph, 33, lives in Detroit. After growing up in foster care at age for four years, she was placed at age 17 into a family. According to the complaint, she’s joining the lawsuit because her foster father was an atheist and believes the adoption law “could have prevented her from finding her family.”
Jay Kaplan, staff attorney at the ACLU of Michigan’s Nancy Katz and Margo Dichtemiller LGBT Project, said in a statement the anti-LGBT adoption law is having negative impact on many families in Michigan.
“Decisions about adoption and foster family placements should be made based on the needs of the child, not the religious beliefs of the agency,” Kaplan said. “There are 13,000 children in Michigan’s child welfare system. Allowing agencies to turn away loving, qualified families based on religious criteria creates fewer families for children, reducing their chances of being placed in a suitable family, or any family at all.”
The Michigan Department of Health & Human Services Adoption Program Statement, also known as Publication 225, says the agency “will not discriminate against any individual or group because of race, religion, age, national origin, color, height, weight, marital status, sex, sexual orientation, gender identity or expression, political beliefs or disability.” The lawsuit, however, asserts this policy is not being applied under Michigan law to state-contracted child placement agencies engaging in anti-LGBT discrimination.
The lawsuit could be a precursor to challenges to similar anti-LGBT “religious freedom” laws in other states: North Dakota, South Dakota, Virginia, Texas and Alabama. The laws in South Dakota, Texas and Alabama were enacted just this year. Mississippi has a broader anti-LGBT “religious freedom” law that also allows discrimination against LGBT prospective parents, although that measure is being challenged in court.
Leslie Cooper, senior staff attorney at the ACLU LGBT & HIV Project, said in a statement discrimination based on religious reasons is unconstitutional and harmful.
“When the state contracts with private child placement agencies to find foster and adoptive families for children in its custody, those agencies cannot turn away families based on religious criteria, just as the state would not be permitted to do,” Cooper said. “Government services must not be provided based on religious standards and taxpayer money must not be used to fund agencies that discriminate based on religion or sexual orientation.”
The Washington Blade has placed a request seeking comment on the lawsuit in with Michigan Attorney General Bill Schuette.