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Federal court halts Michigan foster care policy as likely religious freedom violation

by | Oct 7, 2019

Can states require that religious organizations providing foster care services through government contracts must refrain from discriminating? Even if that means they must act counter to their sincere religious beliefs? That controversial question has gained increasing attention and scrutiny this year, and a recent decision from a federal judge in Michigan adds yet another new layer to the discussion.

In Buck v. Gordon, the court ruled in favor of the plaintiffs. The plaintiffs argued that the state’s new policy that all organizations contracting with the state to provide child placement services must comply with non-discrimination rules is a violation of their religious freedom rights under the First Amendment and the Religious Freedom Restoration Act (RFRA). Specifically, the court emphasized that the policy improperly targets a particular organization, St. Vincent Catholic Charities, and thus cannot survive constitutional scrutiny.

In his opinion, Judge Robert Jonker explains the background of the case that led him to issue an injunction putting a stop to Michigan’s new policy:

What this case is about is whether St. Vincent may continue to do [adoption placement] work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman. In 2015, Michigan’s state legislature passed a law designed to ensure it could do just that. And when the State was first sued on the issue, the State defended the right of St. Vincent to maintain its religious belief while it placed children on a non-discriminatory basis in any home approved by the State.

 

But that changed in the wake of the 2018 general election. While a candidate for Michigan Attorney General, Dana Nessel called the law indefensible. She indicated that she would not defend the State’s position in the litigation challenging the law, because she “could not justify using the state’s money” to defend “a law whose only purpose is discriminatory animus.”…. Candidate Nessel won the election, and shortly after taking office, she changed the State’s position toward St. Vincent. Under the Attorney General’s current interpretation of Michigan law and the parties’ contracts, St. Vincent must choose between its traditional religious belief, and the privilege of continuing to place children with foster and adoptive parents of all types.

Importantly here, St. Vincent maintains that it has never refused to place a child with a certified unmarried or same-sex couple. Instead, it declines to provide parental certification for such couples and refers them to other agencies that do not have religious objections. That approach, the court noted, was accepted by the state until January of this year.

This issue remains one to watch closely as cases continue to wind their way through the courts.

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