Should Adoption Agencies Be Allowed to Discriminate Against Gay Parents?

In states like Michigan, religious-freedom laws are running up against the government’s obligation to treat its citizens equally.

Seth Duimstra/Sethington's Creations

Clint McCormack knows that some people don’t think gay couples should be allowed to foster or adopt children. But it still stung when he called a religious adoption agency in Michigan and asked whether it would help him foster a child together with his partner, Bryan. “She was very rude, she basically hung up on me,” McCormack told me.

The controversy over Kim Davis, the Kentucky clerk who refused to issue marriage licenses to same-sex couples, may have finally subsided. But the surge of people and agencies that, like Davis, claim that their religion prohibits them from serving same-sex couples, has just begun.

The push began even before the Supreme Court delivered its decision upholding a constitutional right to same-sex marriage. Michigan passed a law, in June, allowing faith-based adoption agencies that contract with the state to refuse to serve prospective parents if doing so would violate the agencies’ religious beliefs. Virginia and North Dakota already have analogous laws in place, and Texas, Florida and Alabama have introduced similar laws this year. North Carolina passed a law in June that excuses magistrates, state officials, and registers of deeds from performing or recording marriages with which the official disagrees on religious grounds. And a July executive order from the governor of Kansas permits faith-based organizations, including those serving the homeless, to deny services to married same-sex couples.

“We can see a correlation between the expansion of the freedom to marry and the expansion of non-discrimination protections of LGBT across the country, and the increase in religious-exemption litigation,” said Heron Greenesmith, the LGBT Movement and Policy Analyst for the Movement Advancement Project, which tracks legislation about lesbian, gay, bisexual, and transgender people.

In 1993, Congress passed the Religious Freedom Restoration Act, which said the government couldn’t restrict a person’s religious practice unless doing so furthered a compelling government interest. It aimed to reinforce the longstanding American commitment to freedom of conscience. But to some observers, the recent flood of religious-exemption legislation at the state level is taking this idea a step too far. Rather than protecting the religious liberties of individuals and agencies, it essentially allows agents of the state to discriminate.

“It’s just discrimination plain and simple,” McCormack told me. “I don’t feel that the states should applaud them by allowing to keep state money.”

To McCormack, laws like Michigan’s impede the adoption of the thousands of children in the state who are desperately seeking permanent homes. McCormack and Reamer have three foster children and 10 adopted children, ranging in age from 6 to 23. They know that the state desperately needs loving homes for thousands of children. Why should a family like theirs, with the resources to help these children, face state-enabled obstacles to doing so?

Religious groups say the Michigan law is a way to ensure that agencies across the state can continue to provide services to children and families in Michigan. If they were forced to help same-sex couples adopt, they’d likely close their doors, as Catholic adoption agencies in other states have done after being required to provide services to same-sex couples. There are other organizations that happily help same-sex couples foster or adopt children, after all, and the faith-based agencies must refer potential clients to those agencies, as part of the new law. Is there really any harm, they say, in letting these agencies hold true to their religious beliefs?

* * *

It’s been a generation since the laws that govern religious freedom and discrimination have been this prominent in public discourse. In 1993, in response to a Supreme Court decision that restricted the ability of Native Americans to practice their religious traditions, Congress passed the Religious Freedom Restoration Act, commonly known as RFRA. The bill, introduced by Democrats Chuck Schumer and Ted Kennedy, passed nearly unanimously and was signed into law by President Bill Clinton. Under the law, the government could only burden a person’s exercise of religion if doing so would further a compelling government interest, and if it were the least restrictive means of doing so.

By and large, these laws were not used to facilitate discrimination, said Doug NeJaime, a law professor at UCLA who studies issues related to same-sex marriage. Instead, they allowed people to continue to practice their religion in the face of government laws from preventing them from doing so. A Santeria priest sued under RFRA so he could keep sacrificing goats in Texas; a Muslim prisoner in Arkansas was able to keep a short board because of RFRA. Churches and other religious organizations benefited from RFRAs too, such as when a Washington DC church was able to overcome local zoning restrictions to move its ministry so it could continue to serve the poor.

But the nature of RFRAs is now changing. A steady stream of states are passing broad RFRAs, according to the Movement Advancement Project’s Greenesmith. 21 states now have broad RFRAs and about 43 percent of LGBT Americans live in states with broad religious exemption laws. As of August of this year, 17 states had introduced broad religious exemption bills.

“The timing of the conversation and the explicitly anti-LGBT rhetoric used to justify these exemptions makes it clear that religious exemptions are being used as a vehicle to harm LGBT individuals and their families,” Greenesmith wrote in a recent report.

State-based RFRAs were passed to preemptively provide religious exemptions to people in advance of a Supreme Court ruling on gay marriage, NeJaime said. But now, those laws are coming up against the ruling, which held that states must recognize same-sex marriage.

“The same-sex marriage right is now a federal constitutional principle, and federal constitutional principles are supreme to state ones,” he said. “I think there’s serious constitutional problems with these laws.”

Opponents protest a recent RFRA in Indiana (Doug McSchooler/AP)

The federal RFRA was passed in order to protect religious minorities from being harmed by government action. But RFRAs, Nejaime said, are now being used to allow individuals to inflict harm on others.

“Few would affirm a result in which some citizens are singled out to bear significant costs of another’s religious exercise,” he wrote, in a paper, “Conscience Wars: Complicity-Based Conscience Claims in Religion and Politics,” published in the Yale Law Journal.

The expanded use of religious-freedom exemptions comes even though protections for lesbian and gay individuals are non-existent in some states. There is no federal law protecting LGBT people from discrimination on the basis of their sexual orientation. Two states, Tennessee and Arkansas, have laws preventing local jurisdictions from passing non-discrimination laws. Some states have laws prohibiting discrimination based on sexual orientation, but many states, including Michigan, have no such law. Thus it was perfectly legal for a Michigan pediatrician to refuse to treat a daughter born to a same-sex couple because of their sexuality.

Michigan’s adoption law is in a slightly different category than the broad state-based religious exemption laws, since it focuses solely on agencies providing adoption services, and because those agencies work for the state but are not the state itself. It’s still unclear if, in a state where it’s legal for individuals to discriminate against people because of their sexuality, private agencies that do the work of a state that has to recognize same-sex marriage can discriminate, too.

“The question is, if they’re serving married couples, can they serve some and not others,” Nejaime said. “It’s murky.” The ACLU of Michigan has vowed to challenge the legislation but has not filed any lawsuits yet.

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In the shadow of the state capitol in Lansing, which is currently buried under layers of scaffolding, I sat down with Dave Maluchnik, a spokesman with the Michigan Catholic Conference. His organization serves as the official voice of the Catholic Church in the state, and it governs how adoption agencies such as the state and local branches of Catholic Charities do their business.

The Conference had pushed for the religious-freedom bill, but Maluchnik, who is young and clean-scrubbed, wanted to make it clear to me that the church does not discriminate, nor does it want its agencies to discriminate against same-sex couples. Everyone is deserving of respect and compassion, he told me, regardless of their religion or sexual orientation.

That being said, the church teaches that marriage is between one man and one woman, and its agencies can’t go against that teaching. “The church has been very clear that our teaching is not going to change just because the cultural understanding of marriage and relationships is shifting,” he told me.

This isn’t just about homosexuality, Maluchnik said. When the Catholic agency working to help a single woman adopt found out that her boyfriend had moved in with her and that they weren’t planning on getting married, it withdrew its support for her because the church doesn’t believe in cohabitation before marriage, he said.

I pointed out to Maluchnik that the church’s teaching is also that members should help the poor and the needy. In fact, a passage on the website of the Michigan Catholic Conference says that the Church “instructs us to put the needs of the poor and vulnerable first.” How was refusing to serve couples willing to provide a home, I asked, putting the needs of poor and vulnerable children first?

“The primary concern always has to be for the children,” he told me. But the bill ensures that adoption agencies such as Catholic Charities stay open, he told me. Catholic agencies stopped providing adoptions in Boston, Illinois, and Washington, D.C., after those jurisdictions recognized same-sex marriages and civil unions. Should they be forced to provide services to same-sex couples, the agencies in Michigan would likewise shut down, he said.

“Nobody wants to see very well-run, professional, top-level agencies that have worked with children for decades close down because there’s an intolerance towards their religious teachings,” he told me.

The bishop of the Catholic Diocese of Lansing greets Sisters (Al Goldis/AP)

Indeed, if faith-based adoption agencies in Michigan closed their doors, the state would have a problem. The state of Michigan doesn’t track which agencies are faith-based, but Bethany Christian Services and various subsets of Catholic Charities, two of the biggest supporters of the bill, together helped finalize 689 adoptions last year, about one-third of the total in the state, according to the Michigan Department of Health and Human Services. Add other agencies with a religion in their title, whether it be Lutheran or Methodist, and faith-based agencies finalized 1,128 adoptions in Michigan, more than half of those completed last year.

The bill in Michigan was a way for religious groups to take a stand after a flood of policies that asked them to violate their beliefs, Maluchnik said. Nationally, for example, the Affordable Care Act requires faith-based organizations to provide birth control to employees, a requirement that the Little Sisters of the Poor have challenged in court.

“I think that we have to perhaps reacquaint ourselves with the level of import of religious liberty rights in this country,” he said. “I think that has become somewhat lost on this and the previous generation.”

* * *

While I was in Michigan, I also stopped by the home of Tod and Tom McMillen-Oakley, who have adopted two children, one through a private adoption and one from the state of Michigan. When I showed up at their lovely brick two-story house in Jackson, Michigan, their son, who I’ll call Jack to protect his privacy, was misbehaving. He was a foster kid they’d adopted, who had traces of marijuana in his system when he was born, and who was taken to the hospital at three weeks with conjunctivitis, pneumonia, thrush and upper and lower G.I. problems. Both of his birth parents are now HIV-positive.

Some sort of behavioral trauma from his childhood is now materializing, Tod and Tom told me. When I approached the house, Jack, a skinny blonde 7-year-old with big eyes, barked “Who are you?” at me. I jokingly asked him the same question. “Get away from my house!” he yelled, getting serious, following me to the door yelling at me to leave. A few minutes later, a neighborhood kid knocked on the door telling Tod that she’d seen Jack trying to break into a car. Tod and Tom sent him to his room, and Tod went up to talk to him about what he’d done.

Seeing Tom and Tod in their peaceful house, which is decorated with thick rugs and stained glass and brightly-colored art, as their misbehaving son wreaked havoc on the afternoon, made me realize just how difficult it is to foster a troubled child. Michigan has about 13,000 children in the foster care system at any given time, with about 2,400 who have the goal of adoption, Bob Wheaton, a spokesman for the Michigan Department of Health and Human Services, told me.  Currently, about 265 foster children are available for adoption and without identified adoptive parents.

The McMillen-Oakley family (Seth Duimstra)

Michigan provides foster care services to some children through its county governments, and refers some to agencies such as Catholic Charities. Still, it can be difficult for families to adopt.

Tom and Tod adopted their first child through a private adoption—their daughter’s mother picked them because she knew she’d be the only mother in the relationship.  Even though the adoption went smoothly, only Tod could legally adopt their daughter at first, because Michigan did not recognize gay marriage, and did not allow unmarried couples to adopt a child together. (That law was one of the reasons Michigan residents April DeBoer and Jayne Rowse filed a lawsuit was consolidated into the Supreme Court case legalizing same-sex marriage).

When they were ready for a second child, the associated fees had almost doubled, and they knew foreign countries often didn’t approve of adoptions to gay parents. Eventually, a minister friend approached them and said she knew of a child in the foster system who was looking for a home. They agreed to meet him, but knew that fostering wouldn’t be without its challenges. Many children in the foster system have disabilities, yet there are rarely resources to help those children or prospective parents deal with those disabilities.

This struck Tom recently when he was at a beach event for gay parents of adopted children. The beach was lined with gay couples and their foster children, and he observed how many children at the event had disabilities or problems that otherwise might have made them difficult to adopt.

“Look at this, the gay couples come along and pick up the trash that the straight people don’t want anymore. We end up taking care of them,” Tom told me. “It sounds horrible to say, but there are so many kids in need.”

Tom and Tod feel grateful that they were able to adopt, but the legislation stung nonetheless. They already have to contend with discrimination in town: Both are teachers, and Tod said that his principal had told him that a few parents had asked for their children not to be in his class because of his sexual orientation. Their town, Jackson, is very conservative—one of the legislators who introduced the adoption bill hails from the next town over. But it still shocked them that their home state would pass a bill essentially condoning discrimination.

“The timing of the bill and everything was just a slap in the face,” Tod told me. “It was, ‘OK, the Supreme Court is not going to let us keep you from getting married, so we’re going to do what we can to make the rest of your life miserable.’”