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Michigan settlement in favor of LGBTQ couples leaves faith-based adoption agencies wondering what's next

SALT LAKE CITY — Michigan's attorney general and the ACLU announced a settlement Friday in a high-profile clash over religious freedom and LGBTQ rights, explaining that the state will no longer contract with and send taxpayer money to faith-based adoption or foster care agencies that won't work with same-sex couples for religious reasons.

"Discrimination in the provision of foster care case management and adoption services is illegal, no matter the rationale," said Michigan Attorney General Dana Nessel in a statement.

The settlement ends an 18-month-long dispute, but does little to resolve the underlying debate, according to legal experts. States across the country will continue to struggle with balancing the needs of LGBTQ couples, religious objectors to same-sex marriage and kids awaiting a new home.

"Of all the religious freedom issues that I've seen in my 15 years of doing this work, (adoption) is the most nuanced of them," said Robin Fretwell Wilson, director of the family law and policy program at the University of Illinois College of Law, to the Deseret News last year.

In 2018, four state legislatures weighed new protections for faith-based adoption or foster care agencies, according to a Deseret News analysis. These efforts succeeded in Kansas and Oklahoma.

Faith-based organizations and other religious freedom advocates argue that foster children are worse off when fewer agencies are available to help them find homes. Outcomes like the Michigan settlement harm religious people who are trying to do good in the world, they say.

"The Michigan attorney general and the ACLU are trying to stop the state from working with faith-based adoption agencies. The result of that will be tragic. Thousands of children will be kept from finding the loving homes they deserve," said Lori Windham, senior counsel at the Becket Fund for Religious Liberty, in a statement.

Members of the LGBTQ community and their supporters, on the other hand, say claims like Windham's aren't fair, arguing that state money shouldn't support agencies that won't work with all potential parents.

"When you accept taxpayer funds to provide this really important government service, you can't throw away good families based on religious criteria that have no relationship to your ability to care for the child," said Leslie Cooper, deputy director of the American Civil Liberties Union's LGBT & HIV Project.

The Michigan case originated in September 2017, when the ACLU sued the state's Department of Health and Human Services and Michigan Children's Services Agency on behalf of two lesbian couples. The lawsuit claimed that the state was violating the Constitution's establishment and equal protection clauses by allowing faith-based agencies to refuse to work with members of the LGBTQ community for religious reasons.

Initially, the state defended its practices. Becket also joined the case on behalf of a faith-based adoption agency, St. Vincent Catholic Charities, and families that had worked with it, asserting that the agency, although unwilling to evaluate whether a same-sex couple should be licensed to serve as foster or adoptive parents, was willing and had in the past worked with same-sex couples who were already licensed by the state.

"Religious faith has motivated and guided charitable work from the founding era until today," said Stephanie Barclay, who worked on the case for Becket, to the Deseret News last summer. "Faith-based organizations were often the first groups historically to provide foster and adoption services to vulnerable children, and they continue to be some of the best at providing these services."

After the 2018 elections, the state of Michigan changed its tune on the case. Nessel, the new attorney general, began working toward a settlement soon after taking office in January. She sought to address the perceived tension between a Michigan law protecting faith-based adoption and foster care agencies from violating their religious beliefs and state contracts outlawing sexual orientation-based discrimination.

Working alongside the ACLU, Nessel determined that there was no tension. The law protecting faith-based organizations was never meant to supersede those nondiscrimination protections, she said.

"Limiting the opportunity for a child to be adopted or fostered by a loving home not only goes against the state's goal of finding a home for every child, it is a direct violation of the contract every child placing agency enters into with the state," Nessel said in her Friday statement.

Moving forward, the state will notify agencies like St. Vincent Catholic Charities that they're in violation of Michigan policy when they refuse to serve same-sex couples, Cooper said.

"Once (an agency) accepts care of children, the services they provide must be provided in a nondiscriminatory manner," Cooper said.

She added that this policy won't prevent faith-based organizations from continuing to facilitate private adoptions in accordance with their beliefs.

"The government has no role in that," Cooper said.

Becket rejects the settlement's interpretation of Michigan law, arguing that state policy offers robust protections to faith-based agencies. The organization is still weighing its next move, a media relations representative said.

Faith-based adoption or foster care agencies could choose to sue the state, as when Catholic Social Services, with the help of Becket, chose to sue the city of Philadelphia, Cooper noted. That case is ongoing.

The bottom line is that the settlement in Michigan may only be a temporary victory for LGBTQ couples and a temporary loss for faith-based adoption or foster care agencies. Future lawsuits could derail the attorney general's decision or the Trump administration could produce new federal guidelines that affect the debate.

In January, government officials took a step in that direction, granting a waiver to allow a Christian foster care agency in South Carolina to continue to receive public money despite refusing to work with same-sex couples and even some Christian applicants, as the Deseret News reported at the time.

Regardless of what the future holds, the couples involved in the Michigan case said they are happy with Friday's announcement.

"We are so happy that, for same-sex couples in Michigan who are interested in fostering or adopting, opening their hearts and homes to a child no longer comes with the risk of being subjected to the discrimination we experienced," said Kristy and Dana Dumont in a statement.