Cross-posted to Medium.com
Last week, the ACLU filed a lawsuit in Michigan challenging a set of laws passed in 2015 that enable state-funded child welfare organizations to discriminate against prospective parents and children on the basis of the organization’s “sincerely held religious beliefs.” This case is one of the first to challenge a growing number of similar state laws that have passed recently. Specifically, Michigan’s laws state that “a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.” In practice, faith-based service providers have been legally emboldened to deny adoptive and foster care opportunities to same-sex couples, including two sets of plaintiffs in the suit. The laws also seem to allow the child placement organizations to discriminate against other groups whose lives may not comport with the organization’s religious beliefs, including single or unmarried parents, LGBTQ youth under agency care, and those who subscribe to religious tenets that the organization does not support.
Michigan, like many other states, outsources child welfare services to private organizations through contracts and grants using taxpayer money. These organizations have significant responsibilities that the state would otherwise be obligated to undertake—including caring for and finding homes for children currently in state custody. Faith-based organizations make up nearly half of the agencies Michigan contracts with to do this work.
Legal and Constitutional Challenges
While the complaint does not challenge a privately funded agency’s right to place or care for children in accordance with their religious beliefs, the ACLU argues that because Michigan contracts with private agencies to provide services for children in state custody—and pays them with taxpayer funds—those agencies must meet the same legal and constitutional obligations as the state.
In its complaint, the ACLU raises two important constitutional claims. First, they argue that Michigan’s actions violate the Establishment Clause of the First Amendment, which mandates a separation between church and state and thus bars the state from providing or refusing to provide government services based on religious criteria. They also argue that the Establishment Clause prohibits the state from “delegating a government function to religious organizations and then allowing those organizations to perform that government function pursuant to religious criteria,” which is exactly what these agencies are doing by denying services to same-sex couples based on religious belief. The ACLU also argues that the laws violate the Equal Protection Clause of the Fourteenth Amendment, which prohibits the state from discriminating on the basis of sexual orientation through “instrumentalities of the state.” In this case, because the faith-based organizations receive state funds specifically to provide the services in question, they qualify as instrumentalities of the state. Finally, the complaint alleges that the Michigan Department of Health and Human Services (DHHS), one of two agencies named in the lawsuit, is violating its own nondiscrimination protections by knowingly allowing child placing agencies to discriminate. DHHS’s Adoption Program Statement, also known as Publication 225, dictates that the department “will not discriminate against any individual or group because of race, religion, age, national origin, color, height, weight, marital status, sex, sexual orientation, gender identity or expression, political beliefs or disability.”
National Trends and Significance
The stakes in Michigan, and nationally, are significant. Michigan currently has 13,000 children in the foster care system, many of whom will wait years to find a family or will age out of the system without having been placed with one. This past year, Alabama, South Dakota and Texas passed similar laws, adding to the three states—North Dakota, Virginia, and Mississippi—that have already passed related laws.
Building off momentum in the states, Congress introduced the Child Welfare Provider Inclusion Act of 2017 (CWPIA) this year. Under that law, the federal government could withhold federal child welfare funds to states that choose not to contract with faith-based organizations, even if states terminate those contracts because the organizations have engaged in unlawful discrimination. If passed, CWPIA would put millions of dollars in federal funding at risk and make thousands of vulnerable children in foster and adoptive care even more vulnerable. Beyond the child welfare context, the Trump administration announced earlier this year that it will re-evaluate protocols and obligations for distributing federal funds to faith-based organizations across all federal agencies, likely resulting in significant consequences for a range of marginalized communities.
These child placement laws are part of national strategy adopted by faith-based organizations and national Christian Right organizations, including the Alliance Defending Freedom, to frame standard government oversight and enforcement of nondiscrimination protections as “discrimination”—not only in the child welfare context, but also where individuals and groups seek access to affirming healthcare, social services, education, housing, and employment. It is vital that advocates continue to challenge this problematic frame—in order to ensure that new and decades-old civil rights and nondiscrimination protections are not entirely nullified because legislatures are invested in giving unconstitutional supremacy to individual religious beliefs over all other rights. The Constitution requires that a proper balance be struck between individual religious beliefs and other fundamental guarantees under the Constitution—particularly where the government is instrumental in funding or facilitating discrimination.