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How a new religious freedom lawsuit affects Michigan's faith-based adoption agencies

SALT LAKE CITY — A recent settlement between LGBTQ couples and the state of Michigan limiting the rights of faith-based adoption and foster care agencies ended one lawsuit but launched another.

The Becket Fund for Religious Liberty announced Monday that it's suing Michigan and the U.S. Department of Health and Human Services on behalf of St. Vincent Catholic Charities and two adoptive families it's served. The lawsuit argues it's wrong for faith-based adoption or foster care agencies to miss out on government contracts simply because they won't work with same-sex couples for religious reasons.

"Faith-based agencies like St. Vincent consistently do the best work because of their faith, and we need more agencies like them helping children — not fewer. The actions by the Attorney General of Michigan do nothing but harm the thousands of at-risk children in desperate need of loving homes," said Mark Rienzi, Becket's president, in a statement.

The new lawsuit is the latest development in a yearslong clash between religious freedom and LGBTQ rights in Michigan and across the country. State and federal leaders are struggling to protect same-sex couples and faith-based adoption agencies at the same time.

"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.

LGBTQ rights activists say their goal is not to shutter faith-based agencies. Instead, it's to keep organizations that won't serve same-sex couples from receiving public money.

Melissa Buck carries son Nate, who is on the autism spectrum,  up to bed at their home in Holt, Mich., on Monday June 11, 2018.    Melissa and her husband, Chad, have adopted their five children through St. Vincent Catholic Charities.
Melissa Buck carries son Nate, who is on the autism spectrum, up to bed at their home in Holt, Mich., on Monday June 11, 2018. Melissa and her husband, Chad, have adopted their five children through St. Vincent Catholic Charities.
Rod Sanford, For the Deseret News

"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," Leslie Cooper, deputy director of the American Civil Liberties Union's LGBT & HIV Project, told the Deseret News last month.

However, limiting access to government contracts can spell doom for faith-based agencies, which have been leaders in the foster care and adoption landscape for decades, said Nick Reaves, a Becket attorney, in a Monday press call.

"St. Vincent would be forced to close down both its foster care and adoption program if the state followed through with the threats that it's made as a result of the settlement agreement," he said.

The settlement, announced March 22, explained that agencies discriminating against potential adoptive or foster parents on the basis of sexual orientation would no longer be eligible for state contracts.

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

The decision ended an 18-month-long legal dispute between the state of Michigan and the American Civil Liberties Union, or ACLU. Becket had also joined the lawsuit to offer additional support for faith-based agencies.

Initially, the state of Michigan defended its partnerships with faith-based foster care and adoption agencies, citing a state law protecting these kinds of organizations from government interference.

However, after Nessel took office this year, she expressed interest in working with the ACLU to settle the lawsuit. In March, she said that state law protecting faith-based organizations doesn't outweigh federal nondiscrimination protections.

"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," she said.

Becket decried the settlement at the time, arguing that the state of Michigan was trampling religious freedom rights. The new lawsuit is aimed at overturning the settlement, reinstating St. Vincent's access to state contracts and clarifying federal nondiscrimination laws.

"One of the arguments that Attorney General Nessel made in the settlement agreement is that (the settlement) was, at least in part, required by the federal government's (adoption-related) regulations," Reaves said. "HHS has stepped back from some of those regulations and it's unclear if they would even apply them themselves."

Melissa Buck, one of the families involved in the lawsuit, said organizations like St. Vincent deserve protection.

"My five children have a home and a future today thanks to St. Vincent, and my husband and I still rely on St. Vincent's vital support in every step of our journey together as a family. We are hopeful that the courts will step in, do the right thing and allow faith-based agencies to continue to help vulnerable families like mine," she said in a statement.