A federal judge ruled Friday that a lawsuit challenging Michigan’s “license to discriminate” for religiously affiliated adoption agencies can proceed.
Two same-sex couples, Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton, are directly suing the state for contracting with religious child-placement agencies it knows will refuse service to same-sex couples. In 2015, the legislature approved a law that ensured that agencies receiving taxpayer funding could refuse to serve same-sex couples without endangering their contracts with the state. Both couples have since been denied service from such agencies.
The state, along with St. Vincent Catholic Charities (which has joined the case as an intervenor defendant), argued that the case should be dismissed. But in his opinion Friday, U.S. District Judge Paul Borman, a Clinton appointment, agreed that the couples have made a credible case that the government is improperly entangled in endorsing the anti-gay religious views of these agencies.
“The Plaintiffs allege that the State Defendants could not turn away a same-sex couple on the basis of religious objections, yet they acknowledge that they are permitting their delegated agencies, carrying out a State function, to do exactly what the Constitution forbids them to do,” he wrote.
What Borman found compelling about the case is that the couples, represented by the ACLU, are not suing the agencies for discriminating. They likewise make clear that they are not trying to prevent the state from contracting with religious organizations. The suit specifically addresses the problem that the state “delegated a public function to religious entities” and is “permitting (if not authorizing…) those entities to employ religious criteria in carrying out that public function, in violation of the Establishment Clause.”
While the state claims that it’s trying to “remain neutral” by allowing agencies to follow their religious beliefs, this claim begets a stark contradiction. The state argues that working with more agencies will benefit more children, but as the couples point out, if those agencies are willing to work with fewer families, it actually inhibits the likelihood of finding homes for the children in need.
There is likewise evidence to suggest that the intent of the 2015 law, which only spoke broadly and vaguely about allowing agencies to follow their religious beliefs without penalty, was passed specifically to allow for this kind of discrimination against same-sex couples.
Though the decision is largely technical, Borman did at times chide the state for trying to distort the couples’ complaint. “Defendants stubbornly, and inappropriately, insist on rewriting the Plaintiffs’ Complaint,” he wrote at one point. In their motion to dismiss, the state officials repeatedly referred to cases that didn’t apply to the specifics of what the couples were arguing.
“The ‘gravamen’ of Plaintiffs’ Complaint is not the purely private decisions of the faith-based agencies in turning them away,” Borman explained. “Rather, Plaintiffs challenge the actions of Defendant state officials in entering into contracts for the provision of state-contracted services, expressly acknowledging and accepting that certain faith-based agencies may elect to discriminate on the basis of sexual orientation in carrying out those state-contracted services, conduct that the Defendants concede the State could not take itself.”
Friday’s decision is by no means the end of the case, but it does bode well for it. It suggests that Michigan will have to defend knowingly subsidizing discrimination by a specific group of religious agencies, in violation of potentially both the Constitution’s Establishment and Equal Protection Clauses.
A similar case is playing out in Philadelphia, but in reverse. There, the city suspended its relationship with two religious agencies because they were refusing to serve same-sex couples in violation of the law and their contracts. Catholic Social Services sued, claiming religious freedom, but a federal judge ruled in Philadelphia’s favor.
Catholic Social Services appealed all the way up to the U.S. Supreme Court asking for the decision to be stayed so that they could continue their adoption services, but the Court declined to do so. Three justices, however, were willing to deprive children of homes to allow the religious agency to continue discriminating.