DETROIT (CN) – The American Civil Liberties Union filed a federal lawsuit on behalf of two lesbian couples who were denied the opportunity to adopt children through Michigan’s foster care system, challenging the state’s practice of letting taxpayer-funded agencies reject qualified same-sex couples because of religious objections.
The couples, Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton, are married, committed and gainfully employed, according to the lawsuit filed Wednesday in Detroit federal court, but they were repeatedly turned away by private child-placing agencies licensed by the Michigan Department of Health and Human Services’ Division of Child Welfare Licensing.
The complaint names only two defendants: Nick Lyon, director of the Michigan Department of Health and Human Services, and Herman McCall, executive director of the Michigan Children’s Services Agency.
According to the complaint, the Department of Health and Human Services contracts out public adoption and foster care services to independent private agencies and pays them with taxpayer funds to perform this government function.
“Same-sex couples aren’t our area of expertise” was the response the Busk-Suttons say they received when they tried to adopt a child from Michigan’s foster care system through Bethany Christian Services, a state-contracted agency near their home in Detroit.
The Dumonts received a similar response from St. Vincent Catholic Charities in Lansing, the lawsuit states.
The Dumonts and Busk-Suttons are joined in the case by Jennifer Ludolph, a woman who grew up in Michigan’s child welfare system after she and her seven siblings were removed from their parents’ home.
At age 17, Ludolph says she was placed with a loving couple that provided a stable home for her and three of her siblings.
Ludolph, who now has children of her own and also serves as a foster parent, is strongly opposed to Michigan allowing taxpayer-funded child placing agencies to turn away prospective foster and adoptive families based on religious criteria, believing that such practices could have prevented her from finding her foster family since her foster father is an atheist.
“Each time a prospective parent who is able to provide a loving and caring family for a child is turned away by a child placing agency because of a religious objection to their sexual orientation (or any other religious objection), the pool of families available for the children in the child welfare system diminishes, reducing children’s options for an appropriate placement, or any placement at all,” the lawsuit states. (Parentheses in original.)
The lawsuit also makes clear that it is not in any way a challenge to the right of a private child-placing agency to practice its religion. Rather, it seeks to ensure that the child welfare services provided by agencies hired by Michigan are based on the needs of the children and provided in accordance with the U.S. Constitution.
The Dumonts, Busk-Suttons and Ludolph have some big guns on their side. They are represented by the ACLU and the ACLU of Michigan.
“Child placing agencies should be focused on the needs of the children in their care,” the ACLU of Michigan says on its website. “Decisions about adoption and foster family placements should be made based on the best interest of the child, not the religious beliefs of the agency. In addition, taxpayer money should not be used to fund agencies that discriminate based on religion or sexual orientation.”
The ACLU argues in the complaint that every major professional organization dedicated to children’s welfare – including the Child Welfare League of America, the National Association of Social Workers, the American Academy of Pediatrics and the American Medical Association – affirmatively states that gay and lesbian parents are as likely as heterosexual parents to provide supportive and healthy environments for their children.
According to the complaint, those same professional organizations also oppose any discrimination based on sexual orientation in matters of adoption and foster care.
The ACLU seeks a declaration that Michigan’s practice of allowing state-contracted, taxpayer-funded agencies to disqualify prospective families headed by same-sex couples based on religious beliefs violates the First and Fourteenth Amendments to the U.S. Constitution.
It also seeks attorneys’ fees and an order enjoining Lyon and McCall from providing taxpayer funding to child-placing agencies that exclude same-sex couples from consideration as foster or adoptive parents or otherwise employ religious criteria in their decisions, unless they are accommodating a particular child’s religious traditions or preferences.
The plaintiffs in the care are represented by Jay Kaplan, Michael Steinberg and Kary Moss of the ACLU Fund of Michigan; Daniel Mach and Leslie Cooper of the ACLU Foundation; and Garrard Beeney, Ann-Elizabeth Ostrager, Ryan Galisewski and Jason Schnier of Sullivan & Cromwell LLP in New York City.
A spokesperson for the Michigan Department of Health and Human Services declined to comment on the pending litigation and referred Courthouse News to a Michigan law that went into effect in September 2015.
That law, HB 4188, states in relevant part that, “a child placing agency shall not be required to provide any services if those services conflict with […] the child placing agency’s sincerely held beliefs.”
However, as the ACLU points out in its complaint, “services” are defined in the statute to include “any service that a child placing agency provides, except foster care case management and adoption services provided under a contract with the department.”