Discrimination by Foster Care and Adoption Agencies

In 2017 the ACLU filed a federal lawsuit challenging Michigan’s practice of permitting state-funded child placement agencies to reject qualified same-sex couples based on the agencies’ religious beliefs. The State of Michigan is responsible for approximately 13,000 children who are in the state’s foster care system, usually because they were removed from their families due to abuse or neglect. Even though adoption and foster care placement is a public function, the state allowed publicly funded agencies, some of which are faith-based, to discriminate against same-sex couples. In 2018 Judge Paul Borman denied the state’s motion to dismiss our lawsuit. In February 2019 the case settled when Governor Whitmer’s new administration agreed to a non-discrimination policy for all contracts with adoption and foster care agencies. However, in March 2019 two faith-based agencies filed new lawsuits against the state, claiming that the non-discrimination policies violated their right to religious liberty. Judge Robert Jonker granted a preliminary injunction in one of the cases, preventing the state from enforcing its non-discrimination policy pending further review. We filed motions to intervene in the new cases to defend the settlement agreement from our previous case. Judge Jonker denied our motion to intervene in one of the cases, but the Sixth Circuit reversed. However, in 2021 the U.S. Supreme Court decided a similar case in favor of faith-based agencies, significantly changing the law in this area. Following that ruling, in January 2022 Michigan entered into a consent judgment that will allow the faith-based agencies to refuse to work with same-sex couples under some circumstances, and in May 2022 we withdrew from the case. (Dumont v. Lyon; Buck v. Gordon; Catholic Charities West Michigan v. Michigan Department of Health & Human Services; ACLU of Michigan Attorneys Jay Kaplan and Dan Korobkin; National ACLU Attorneys Leslie Cooper and Dan Mach; co-counsel Garrard Beeney, Ann-Elizabeth Ostrager and Elizabeth Storey of Sullivan & Cromwell.)