In the war over faith-based foster care agencies, is an end finally in sight?
After a Supreme Court victory in June, faith-based foster care agencies seem to have the upper hand in ongoing legislative and legal battles
Eight months ago, Melissa Buck dared to dream that her long legal battle with the state of Michigan would soon end. The Supreme Court had just ruled in favor of a Catholic foster care agency in Philadelphia in a case that shared much in common with her own.
“When the ruling came out and it was unanimous, that was just a huge sigh of relief. It was a huge ‘Yes!’ moment,” she said.
Last week brought another “Yes” moment when Buck’s June dream came true. A Michigan judge accepted a settlement agreement between her family, their own Catholic agency and state officials, which will allow the agency to continue partnering with and receiving funds from Michigan despite its faith-based opposition to evaluating, certifying and placing children with same-sex or unmarried couples.
“It’s such a great outcome for the kids that are in foster care in our state. It’s a great outcome for St. Vincent’s and us as well. It means a lot that we can continue working with our agency,” said Buck, who, along with her husband, Chad, has adopted five children through St. Vincent’s and is in the process of adopting a sixth.
In the settlement agreement, as well as statements on it, Michigan officials claimed that last year’s Supreme Court ruling forced their hand. Moving forward, the state will continue to ensure that gay couples and others get the support they need, said Demetrius Starling, executive director of the Children’s Services Agency, last week.
“While this outcome is not what we hoped for, we are committed to providing support to the many members in the LGBTQ community who want to open their hearts and their homes,” he said in a statement.
Supporters of agencies like St. Vincent’s said this statement gives them hope that yearslong battles over religious freedom and foster care are drawing to an end. It’s notable that even officials like Starling who disagree with the Supreme Court’s June ruling are now accommodating faith-based agencies, they say.
However, other legal experts believe the war is far from over. The Supreme Court’s decision may have had a “chilling effect” on LGBTQ rights advocacy, but it hasn’t convinced critics of more conservative faith-based agencies to throw in the towel, said Alex Luchenitser, associate vice president and associate legal director of Americans United for Separation of Church and State.
“We have to make sure no child is denied a loving home because the person who could have helped them was kept from them” by a faith-based agency, he said.
Supreme Court aftershocks
When the Supreme Court’s decision was handed down in June, it wasn’t clear that its impact would be felt so strongly or so quickly. No one denied that it was significant for the court to unanimously side with the Catholic agency, but some legal experts felt the ruling was not broad enough to shake up the national landscape.
“(The ruling) was based on very narrow grounds,” Luchenitser said, noting that the justices focused on the granular details of Philadelphia’s foster care contracts.
Justice Neil Gorsuch, one of the Supreme Court’s more conservative members, highlighted this fact in his concurring opinion. He argued that the majority opinion was essentially a road map showing Philadelphia officials how to revise their policies and continue excluding faith-based agencies without violating the law.
“With a flick of a pen, municipal lawyers may rewrite the city’s contract to close the ... loophole,” Gorsuch wrote.
Although his concerns may be validated in the long term, the Michigan settlement shows that the ruling was still a big deal. States and cities don’t need to have Philadelphia’s exact policies on the books to feel implicated by the court’s decision, said Lori Windham, senior counsel for the Becket Fund for Religious Liberty, which was involved in both the Philadelphia and Michigan cases.
“The Supreme Court said that if you have the kind of discretion in your system that allows you to make exceptions, then you have to make exceptions for religious exercise,” she said. “It’s very common that the government has a lot of discretion to decide who gets to participate (in the system) and where kids will go.”
Even in states where that isn’t the case, the June ruling seems to be having an impact, Luchenitser said. Policymakers are looking at the Catholic agency’s win — and the broader success of religious freedom claims in recent years — and feeling pressured to accommodate conservative religious groups.
“Government officials and judges across the country are aware that the Supreme Court is trending in favor of exemptions for religious organizations,” he said.
The latest battle lines
In the eyes of Luchenitser and other more liberal religious freedom advocates, this awareness is problematic. It can lead policymakers to focus on the concerns of faith-based agencies rather than the struggles of prospective LGBTQ or non-Christian foster parents, Luchenitser said.
“Government officials seem less willing to enforce anti-discrimination prohibitions against religious organizations or enact anti-discrimination prohibitions that are applicable to religious organizations,” he said.
His organization, Americans United for Separation of Church and State, is trying to refocus the debate on the value of anti-discrimination protections. Earlier this year, it filed a lawsuit on behalf of a Jewish couple that could force the state of Tennessee to scale back the protections it currently offers to religiously affiliated agencies receiving public funds.
“When taxpayers are supporting government-funded foster care placements, and the tax funds are coming from all taxpayers, then the agencies should serve all taxpayers equally, regardless of the taxpayers’ religious beliefs,” Luchenitser said.
The Tennessee case centers on the experience of Elizabeth and Gabriel Rutan-Ram, who reached out to a Christian agency for help as they pursued an opportunity to foster a child from Florida. The agency, Holston United Methodist Home for Children, was the only one they then knew of that would help facilitate out-of-state foster care placements.
On the day the Rutan-Rams were meant to start their foster care training, Holston informed them that it wouldn’t partner with them due to their Jewish faith. Elizabeth later said that hearing the news felt like being “punched in the gut.”
“It was very shocking. And it was very hurtful that the agency seemed to think that a child would be better off in state custody than with a loving family like us,” she said in a January statement.
Although Holston provided a referral to another agency, that partnership also didn’t work out. The Rutan-Rams lost the chance to offer a home to the Florida foster child largely because of their state’s willingness to exempt faith-based agencies from nondiscrimination rules, Luchenitser said.
“They were not able to foster-to-adopt the particular child they were really excited about ... because the agency refused to serve them because of their religious beliefs,” he said.
Luchenitser and others believe the story illustrates why it’s important to keep fighting what they feel are overly broad religious freedom protections. They celebrated last November when the Biden administration announced it was reassessing government partnerships with faith-based foster care providers.
“With the large number of discrimination claims before us, we owe it to all who come forward to act, whether to review, investigate or take appropriate measures to protect their rights,” said Xavier Becerra, the secretary of the U.S. Department of Health and Human Services, at the time.
Windham from Becket said the announcement was “surprising” given the Supreme Court’s ruling in the Philadelphia case. But both she and Buck remain confident that faith-based agencies have the law on their side.
“The settlement in Michigan shows how strong this (Supreme Court) precedent is,” Windham said.