Author archives: David Closson

Lawsuit Targeting Faith-Based Adoption Agencies Allowed to Proceed in Michigan

by David Closson

September 17, 2018

On Friday, a federal judge ruled that Dumont v. Lyon, the ACLU’s lawsuit against the Michigan Department of Health and Human Services, may proceed, finding that the plaintiffs—two same-sex couples who allege they were turned away by certain faith-based placing agencies when they sought to adopt—have standing to sue.

In denying the Defendant’s motion to dismiss, the Clinton-appointed District Judge, Paul D. Borman, ruled that the couples have demonstrated plausible Establishment Clause and Equal Protection claims that are “fairly traceable” to the defendant’s practice of entering into contracts with faith-based agencies that operate according to their religious beliefs about marriage. Michigan state law since 2015 has protected the conscience rights of faith-based adoption providers.

In his ruling, Judge Borman explained that because faith-based agencies process 20 percent of the active foster care and adoption cases in Michigan, it is “reasonable to infer that the ability of faith-based agencies to employ religious criteria as a basis to turn away same-sex couples erects at least a 20% barrier to that Prospective Parent Plaintiffs’ ability to adopt or foster a child in the State of Michigan.” Noticeably absent from Judge Borman’s comments on this point is that the ACLU’s clients in the case live closer to four other foster and adoption agencies than St. Vincent Catholic Charities, a co-defendant in the case. All four agencies facilitate adoptions for same-sex couples.

Significant for this case—and others moving forward—Borman cites the Plaintiff’s claim of “stigmatic injury” alongside “practical injuries” as grounds for allowing their Establishment Clause claims to proceed. In addition to claiming that Michigan’s law makes it more difficult for them to adopt, the same-sex couples allege that the state’s practice of contracting with faith-based agencies with religious convictions constitutes a form of harmful discrimination. This is an appeal to “dignitary harm,” a concept that refers to the alleged emotional pain and humiliation suffered when someone disagrees with another’s moral decisions or lifestyle; the notion is increasingly invoked by activists who want to silence dissent from anyone who disagrees with the LGBT agenda.

The longest section in the 93-page ruling was Borman’s rationale for why, in his view, the Plaintiffs have credibly alleged an Establishment Clause violation. The Plaintiffs believe the implementation of Michigan law constitutes an endorsement and promotion of religion which is prohibited by the Establishment Clause. Concurring with the Plaintiffs, Borman employs the second and third prongs of the Lemon test to establish whether Michigan’s law conveys the message that the state endorses the view that opposes same-sex marriage. According to Borman, “The answer is yes.” In an important paragraph he argues that “Plaintiffs plausibly allege and suggest that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both a subjective purpose of discriminating against those who oppose the view of the faith-based agencies and objectively endorses the religious view of those agencies that same-sex marriage is wrong.”

Borman also says that while the Establishment Clause does not prohibit Michigan from entering into contracts with religious organizations, the use of religious criteria by faith-based adoption providers suggests “excessive entanglement” between the state and religion. Thus, according to Borman’s opinion, the Defendants will need to prove in the trial phase why current state law protecting faith-based adoption agencies does not constitute an inappropriate promotion of or excessive entanglement of religion.

Turning to the Plaintiff’s Equal Protection claim, Borman is more cautious but permits the claim to proceed to the discovery phase. Notably, he admits the Plaintiff’s burden to prove that Michigan’s law is motivated by anti-gay animus is “admittedly high.”

On one count Borman does rule in favor of the Defendants, finding that the Plaintiffs fail to establish taxpayer standing to assert their Establishment Clause claims. Alongside the same-sex couples, Jennifer Ludolph, a former foster child who also sued the state, objected to the use of taxpayer money to fund child-placing agencies that do not place children in same-sex households due to the provider’s religious convictions on marriage. Borman ruled that all of the Plaintiffs failed to establish taxpayer standing and dismissed with prejudice Ludolph’s claims.

In response to the decision, Mark Rienzi, an attorney with Becket representing St. Vincent said, “Today’s court ruling allows the ACLU’s lawsuit to proceed—a lawsuit aimed at forbidding the state from working with faith-based adoption agencies to help children in need. Such a result would make it much harder for thousands of children to find the loving home they each deserve. Beckett is fighting to make sure that doesn’t happen, and this is just one step along the journey in this case.”

SOGI Law Forces Catholic Adoption Provider to Close After 95 Years

by David Closson

August 31, 2018

Last week, after nearly 95 years of providing adoption services, Catholic Charities of Buffalo announced the termination of their adoption and foster care programs because of state requirements that would have forced the charity to violate its religious convictions by placing children in homes without both a father and a mother.  

The agency said their decision was guided by the Catholic Church’s historic teaching on the nature of marriage and family and acknowledged the change was prompted by a same-sex couple’s recent application to become adoptive foster parents.  

In their official statement the agency explained, “As an organization sponsored by the Diocese of Buffalo, Catholic Charities cannot uphold the requirement that contracting agencies allow same-sex couples to foster and adopt children. The teaching and position of the Roman Catholic Church throughout the world recognizes marriage only as a union between a woman and a man.” Noting the obvious, they add: “We’re a Catholic organization, so we have to practice what we do consistent with the teaching of the Church.” 

Tragically, Catholic Charities of Buffalo joins a growing list of faith-based adoption providers that have been forced out of business for refusing to compromise their religious convictions in order to comply with sexual orientation and gender identity (SOGI) “nondiscrimination” ordinances. Earlier this summer, Philadelphia discontinued their relationship with two adoption providers that could not conform to the city’s SOGI law because to do so would violate their religious convictions. In July, a federal judge sided with the city after the adoption agencies filed a motion for a temporary injunction.  

Behind these developments in Buffalo and Philadelphia is a clear message to faith-based adoption-providers: unless you embrace and subscribe to the new orthodoxy on contested matters related to marriage, sexual orientation, and gender identity, you will be blacklisted, targeted, and ultimately run out of business.  

In Buffalo, intolerance toward Christian beliefs was couched in the language of discrimination. A spokesperson for the New York Office of Children and Family Services said, “Discrimination of any kind is illegal and in this case (Children and Family Services) will vigorously enforce the laws designed to protect the rights of children and same sex couples.” 

Thus, under the guise of combatting discrimination, the state government is trampling the religious freedom of faith-based agencies by refusing to grant an exemption or accommodation. Moreover, they are tragically putting the partisan political agenda of adult activists over the interests of children. No one is served by forcing the closure of an organization with a proven track-record of helping children. On average, Buffalo Catholic Charities arranges the adoption of five children per year and currently has 34 children in foster care. When they close, their work of placing these children with adoptive parents will stop. The situation is a lose-lose for everyone, but especially vulnerable children.  

Consider these statistics: there are currently 437,465 children in foster care and 117,794 waiting to be adopted. These numbers highlight the dire need and underscore the reality that the maximum number of partnering organizations are needed to serve the needs of society’s at-risk children. However, if progressive activists have their way and continue enacting SOGI ordinances that preclude faith-based agencies from operating according to the moral teachings of their faith, hundreds of organizations will soon be forced out of the foster-care marketplace altogether. Again, the results would be devastating for at risk-kids.

In short, the development in Buffalo once again underscores the need for federal legislation such as The Child Welfare Provider Inclusion Act (CWPIA) that would ensure all available agencies can continue to serve children without compromising the agency’s sincere beliefs or moral convictions.

Until legislators act, stories like these from Philadelphia and Buffalo will reoccur and children will continue to be the unfortunate casualties in an adult culture-war.

David Closson is Research Fellow for Religious Freedom and Biblical Worldview at Family Research Council.

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