Michigan will let religious adoption agencies deny children to same-sex couples

On Thursday, Michigan Gov. Rick Snyder signed a package of religious freedom adoption laws that will let state-funded adoption agencies refuse service to same-sex and unmarried parents on religious objections.

The Michigan laws — known as HB 4188, 4189, and 4190 — differ greatly from Indiana’s religious freedom law because they focus on adoption agencies in particular, while Indiana’s law applied general religious freedom protections to the entire state. Legal experts also doubted Indiana’s law could be used to justify discrimination against LGBT people, based on decades of legal precedent.

But Michigan’s laws do allow discrimination. Douglas Laycock, an expert on religious freedom laws at the University of Virginia School of Law, said the laws allow a Catholic adoption agency that receives state funding, for example, to refuse service to same-sex parents out of religious objections to homosexuality — without the risk of losing subsidies in the future.

This type of discrimination is already legal in Michigan, where same-sex couples are prohibited from jointly adopting children. But a looming Supreme Court ruling on same-sex marriage could invalidate the state’s adoption ban, making the new law a way for religious adoption agencies to bypass a court decision.

In Michigan, the state’s Department of Health and Human Services contracts with and subsidizes private adoption agencies, which are sometimes faith-based, to connect interested parents with adopted children.

The religious freedom laws, which officials say codify existing department policy, allow these private agencies to refuse to work with some parents — such as same-sex or unmarried couples — on religious grounds without having state funding cut off. But the agency has to prove its religious beliefs are sincere through a written policy, and it must redirect prospective parents to other agencies.

Only two other states — North Dakota and Virginia — currently have similar laws, according to the Associated Press’s David Eggert.

Critics say the laws are religious-based discrimination. They also worry the laws could extend to discrimination against other religious groups — such as Muslims — since religious adoption agencies might want to place children with parents of the same religion. “Agencies have a legal obligation to ensure the best interests of the child are considered during placement,” Rana Elmir, deputy director of the American Civil Liberties Union of Michigan, said in a statement. “There is nothing about this shameful legislation that helps vulnerable kids find homes.”

But supporters of the religious freedom laws say they will allow more adoption agencies to remain in operation, since some faith-based agencies would rather shut down than place children with same-sex parents. In Illinois, Massachusetts, and Washington, DC, Catholic Charities shut down adoption units to avoid serving same-sex couples once same-sex marriage was legalized.

“This is a matter of deeply held conscientious commitment for the Church and those who lead these agencies,” Laycock, of University of Virginia School of Law, wrote in an email. “They believe that children placed with same-sex couples will suffer in the long run, and that such placements endorse a way of living that is intrinsically disordered and morally wrong. I don’t agree with any of that, but that is what they believe.”

Under state law, Michigan already bans same-sex parents from jointly adopting a child. This is actually part of the Supreme Court challenge over marriage equality: one of the six cases that was consolidated at the Supreme Court originated as a challenge to the state’s adoption ban, but it was later decided that it was part of the marriage issue because the state of Michigan would have to recognize both same-sex parents if they were married.

But with the Supreme Court widely expected to legalize same-sex marriages across the US, Michigan’s religious freedom laws give private agencies a way to continue denying service to same-sex couples. The state might have to recognize gay and lesbian couples’ marriages and adoptions after the Supreme Court decision, but private adoption agencies won’t.