Can State-Funded Organizations Decide Not to Serve LGBTQ+ People?

A new Michigan case about foster care and adoption could become a precedent-setter in the realm of addressing a significant civil rights question

Nowhere has political whiplash become as
 evident as in the debate over whether the State of Michigan should contract with faith-based organizations that 
facilitate foster care and adoptions but refuse to work with same-sex couples on religious grounds. When the American Civil Liberties Union sued the state to stop contracting St. Vincent Catholic Charities and Bethany Christian Services, Republican Bill Schuette backed the agencies’ beliefs. But two months into her tenure, Attorney General Dana Nessel settled the case in the ACLU’s favor, by asserting that refusing to contract with same-sex couples violates the agencies’ contract with the state. Of course, that wasn’t the end of the matter. Becket Fund for Religious Liberty, a Washington, D.C.-based law firm, sued in mid-April on behalf of St. Vincent. Becket’s attorneys argue that excluding faith-based groups is, itself, discriminatory. (In late April, Bethany Christian Services said it was changing its policy to serve same-sex couples.) The dispute is only the latest in a string of controversies around the nation pitting religious liberty against newly won LGBTQ+ civil rights. As Hour Detroit found in talking to the ACLU’s Jay Kaplan and Becket’s Nick Reaves, both sides expect this conflict to continue for years to come.

Jay Kaplan

Staff Attorney for ACLU of Michigan’s LGBT Project

“Our concern is the children. Children in foster care need every family that’s willing and able to provide them a loving home.”

Hour Detroit: How did the original 2017 case between the American Civil Liberties Union and the State of Michigan begin?

Jay Kaplan:  We heard from couples who had contacted some faith-based foster care agencies and were told they wouldn’t work with them because they were a same-sex couple. We did some investigation and contacted the attorney general’s office and informed them that Michigan was contracting with agencies that were ignoring contractual language that says they can’t discriminate based on various categories including sexual orientation.

What did the previous Attorney General Bill Schuette do?

We asked for a meeting with the attorney general’s office and essentially the response was, we don’t want to talk with you. You’re probably just going to sue us, so go ahead and do that. And so, we did. (Editor’s Note: A former spokesperson for Schuette’s office said she could neither confirm nor deny this account.)

Was there some compromise you had in mind with the AG?

It’s about adhering to the contract language. The idea that state actors that have contracts with the state to be agents of the state would permit discrimination, there’s no compromise there. It’s clearly unconstitutional.

Are you concerned that the new lawsuit could percolate up to the
U.S. Supreme Court and set a precedent that would be troubling to LGBTQ+ groups?

Well, absolutely. But our concern is the children. Children in foster care need every family that’s willing and able to provide them a loving home. When agencies accept tax dollars to provide public child welfare services for children in the foster care system, the state’s entitled to require them to accept all qualified families.

Are there similar cases elsewhere?

Yes. A faith-based agency is suing the City of Philadelphia, which said we’re not going to continue your contract to provide foster care services if you refuse to work with same-sex couples in violation of our nondiscrimination policy. The Federal District Court held against them and it was held up on appeal.  Eventually, you’re right, this issue is going to go to the United States Supreme Court.

Becket argues that by withdrawing support from faith-based groups,
the state won’t be able to serve as many children as they do.

There are some 90-plus agencies that are providing foster care and adoption services in Michigan. If, indeed, one of these agencies decides that because they aren’t permitted to discriminate, they must shut down, we believe other agencies are willing, ready and able to work with even more children who need these types of permanent stable homes.

Several commenters on local news stories say Attorney General Dana Nessel shouldn’t be involved in this matter because she’s a lesbian.

Couldn’t you say the same thing about any attorney general who’s heterosexual anytime there’s an issue about heterosexual people? That’s so silly, that someone by virtue of their sexual orientation can’t decide a case without bias.

What kinds of reactions did the families turned away come to you with?

They thought in this day and age, if you wanted to be a foster parent and you have the ability and the desire to provide a loving and stable home, that would be the most significant factor. But to contact an agency and request an application or some materials from the agency about working with them and then to be told, ‘Sorry, we won’t work with you,’ that was devastating for them.

Nick Reaves

Attorney, Becket Fund

Shutting down an agency like St. Vincent in the face of a real crisis in foster care in Michigan just doesn’t make sense.

Hour Detroit: What are the beliefs that prevent St. Vincent from working with same-sex couples?

Nick Reaves: The one thing they can’t do as a Catholic organization is put their seal of approval on marital relationships that don’t accord with their faith. St. Vincent views the home study and certification process as the agency endorsing the relationships among all the individuals in the home. But if the child is in foster care through St. Vincent and a same-sex couple receives their certification from another agency, they can still adopt that child. That’s happened in the past.

The argument from the ACLU and now the attorney general is that these organizations have contracts with the state but do not serve everybody in the state the same way.

We have diversity in foster care for a reason. There are 90 different agencies across the state and a lot of them have specializations. There’s a couple of agencies that only serve Native American children. Some are only looking for parents who have experience serving disabled children. We have more than 12,000 kids currently in the foster care system, so what we really need is just more families serving more children. No one is preventing same-sex couples from becoming foster parents. That is not what the lawsuit is about. We need all hands on deck. Allowing faith-based agencies to continue doing what they do best, recruiting families from their networks to help these kids, is the most important point.

What’s the legal theory behind the new lawsuit?

It’s First Amendment Free Exercise claim. There was a case a while back called Trinity Lutheran in which a pre-school attached to a church in Missouri wanted to receive a grant from the state to put in new groundcover for their playground. Missouri said they’d give it to all these other organizations but not to Trinity Lutheran because they are religious. The Supreme Court said, no, you can’t really do that. If you give the other organizations, you can’t exclude these religious groups simply because they’re religious. There’s a religious targeting claim.

In the St. Vincent case, how much money would the organization lose?

I’m not exactly sure, but every year St. Vincent loses money by doing this if you combine the foster care and adoption programs. Every year, they supplement the state money with private donations so they can provide more services to the kids and the families in need.

So St. Vincent cannot do this work without the state funding?

Right. It’s not even just the state funding. You’re not allowed to. It’s illegal to do it without the state. You have to be state-licensed to do this work.

Are cases like these part of the long road for this country to figure out how to balance these different interests in a new era of civil rights?

It could be. There’s certainly interest from the Supreme Court. You’re right in the way you phrase the question, finding the right balance. It’s a matter of, will the state let St. Vincent continue doing their ministry or will they be shut out? 

Obviously, LGBTQ+ families were offended when they were turned away. It’s emotional to a lot of people.

That is difficult. It’s also emotional for the families that work with St. Vincent to lose an agency that has been a support for them. Shutting down an agency like St. Vincent in the face of a real crisis in foster care in Michigan just doesn’t make sense. St. Vincent has 86 kids in care right now and have helped hundreds over the past couple of years. There’s a lot of emotion on both sides.