The State of Michigan contracts with 59 private adoption and foster care agencies. Twenty are affiliated with religious organizations, though state officials were not able to say how many follow similar policies, the Detroit Free Press reports.
Lori Windham, senior counsel at the religious freedom legal group Becket, said the attorney general and the ACLU are “trying to stop the state from working with faith-based adoption agencies.”
“The result of that will be tragic. Thousands of children will be kept from finding the loving homes they deserve,” Windham said March 22. “This settlement violates the state law protecting religious adoption agencies. This harms children and families waiting for forever homes and limits access for couples who chose to partner with those agencies.”
Becket is representing the Catholic adoption agency affected by the case.
The ACLU filed the lawsuit in 2017 on behalf of two same-sex couples and a woman who was in foster care in her teens after the previous attorney general, Bill Schuette, declined to speak to the legal group.
The couples had approached St. Vincent Catholic Charities and Bethany Christian Services to adopt children referred to the agencies through the Michigan Department of Health and Human Services.
Nessel justified the settlement on Friday.
“Discrimination in the provision of foster care case management and adoption services is illegal, no matter the rationale,” said Nessel. “Limiting the opportunity for a child to be adopted or fostered by a loving home not only goes against the state’s goal of finding a home for every child, it is a direct violation of the contract every child-placing agency enters into with the state.”
Nessel is the first self-identified lesbian elected to statewide office in Michigan and made LGBT advocacy a major part of her campaign, the Detroit Free Press said. She represented a same-sex couple in a case that led to the 2015 U.S. Supreme Court decision mandating legal recognition of same-sex unions as civil marriages.
The ACLU characterized the settlement as a victory for the 12,000 children in Michigan foster care.
“Our children need every family that is willing and able to provide them with a loving home,” said Leslie Cooper, deputy director of the ACLU LGBT & HIV Project. She said agencies that choose to accept taxpayer dollars “must put the needs of the children first.”
A 2015 law, passed with the backing of the Michigan Catholic Conference, prevents state-funded adoption and foster agencies from being forced to place children in violation of their beliefs. The law protects them from civil action and from threats to their public funding, while requiring agencies that decline to place children with same-sex couples to refer the couples to other providers.
When the law was passed, about 25 percent of Michigan’s adoption and foster agencies were faith-based.
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Senate Majority Leader Mike Shirkey, a Republican, criticized the settlement and said faith-based adoption agencies will have to close because of a lack of taxpayer-funded support.
“Dana Nessel has shown us that she cares little for the Constitution and even less for the vulnerable population of children in need of forever homes,” Shirkey charged. “Nessel’s actions make it clear that she sought the office of attorney general to further her own personal political agenda.”
State Rep. James Lower, R-Cedar Lake, wasn’t in the legislature when its 2015 bill passed but said he would have backed it, the Detroit Free Press said.
For Lower, the law made sense because “the situation puts these agencies in a tough situation because they have been able to refer couples to another agency that is willing to work with same-sex couples.”
“But now, they'll have to choose to either not to help the kids or violate their religious beliefs,” he added.
In 2017, the Michigan Catholic Conference described the lawsuit as “mean-spirited, divisive and intolerant,” and “yet another egregious attack on religious faith in public life.” The 2015 law was needed to “promote diversity in child placement” and to maintain a public-private partnership to stabilize adoption and foster care, the conference said.