Michigan State Representative Kenneth Kurtz (R – Coldwater), in what he has described as a “pre-emptive strike” to avoid the possibility that Michigan will – at some undetermined time in the future – join states such as Massachusetts, New York, and Illinois in prohibiting religiously-affiliated adoption agencies from discriminating against prospective foster and adoptive parents. Representative Kurtz introduced legislation that does two things: it expressly allows Michigan’s licensed adoption agencies to refuse to participate in any placement “that violates the child-placing agency’s deeply held religious beliefs;” and prevents the State of Michigan from withholding state funding from any agency that so refuses.
Virginia is the only other state that has passed such a law, and it did so just last year that amid great controversy. The only state, other than Michigan, where such legislation has been introduced is Illinois, where last year it was rejected by a Senate subcommittee, and is expected to meet the same fate this year. The Michigan bills thus represents an extremist attempt to inject religious politics into a state-funded system that is supposed to be about the best interests of children. To be perfectly clear, this legislation is directly targeted against the LGBT community.
According to a 2013 report by the Williams Institute, there are 2,650 same-sex couples raising 5,300 children in the state of Michigan. As of 2011, of the 408,000 youth in foster care in the U.S., 15,105 of them reside in Michigan, 4,237 of whom are eligible for adoption. Nationally, more than 104,000 children in the foster care system cannot return to their original families and are legally free for adoption.
While 50,516 children were adopted in 2011, a whopping 52% or 26,286 youth ‘‘aged out’’ of the foster care system. Research shows that youth who ‘‘age out’’ of the foster care system are at a high risk. This is a risk that we can mitigate here in Michigan. The first step is to defeat legislation, such as this, that reduces the number of loving families available to adopt.
By allowing state-funded adoption agencies to refuse, on religious grounds, to provide their services to otherwise qualified families willing to bring a needy child into their home, the State of Michigan would be sanctioning discrimination against those families and making it harder for needy foster children to find permanent homes.
What legitimate interest does the state of Michigan have in preventing children that are in desperate need of forever homes from finding them?
These bills have been promoted as protecting the “religious liberty” of faith-based adoption agencies. While no one will argue that one of the blessings of liberty in this country is freedom of religion, and thus no government can tell us what to believe or not to believe, another equally important pillar of our society is that no matter what disagreements we may have with one another based on our religious views, we are all entitled to equal protection of the laws. The children in Michigan’s foster care system are no different. They deserve – and we in the state of Michigan have the duty to provide – every opportunity available to find loving, stable, forever homes to call their own.
What government can and must do is make a distinction between religious belief, which is entitled to absolute respect, and conduct that infringes on the rights of others. This distinction is essential to maintaining a civil society. As New Mexico Supreme Court Justice Bosson recently wrote in a case where a photographer refused to provide services to a same-sex couple in violation of the state’s inclusive civil rights law: “In a constitutional form of government, personal, religious, and moral beliefs, when acted upon to the detriment of someone else’s rights, have constitutional limits. One is free to believe, think and speak as one’s conscience, or God, dictates. But when actions, even religiously inspired, conflict with other constitutionally protected rights…then there must be some accommodation.”
Because of our multi-cultural society, and our shared commitment to fairness, equality, and justice, religiously based conduct in the public sphere that conflicts with that commitment must give way. As Justice Bosson observed: “That compromise is part of the glue that holds us together as a nation, the tolerance that lubricates the varied moving parts of us as a people. That sense of respect we owe others, whether or not we believe as they do, illuminates this country, setting it apart from the discord that afflicts much of the rest of the world. In short, I would say… with the utmost respect: it is the price of citizenship.”
Accordingly, persons who operate businesses subject to state regulation, including faith-based agencies – and especially those that seek public funds to do their work — have always been understood to be subject to our general laws prohibiting discrimination against various disfavored classes of people. For example, even though many people still have religious or moral reservations about interracial relationships, it is unimaginable that we would pass legislation that would allow a place of public accommodation to lawfully deny service to an interracial couple based on the owner’s religious objections. Such behavior was part of this country’s ugly past and we chose long ago not to dignify it with legal protection.
Michigan’s proposed legislation demonstrates that, despite (and perhaps because of) the inevitable advancement of marriage equality, our families – and most importantly, our children – face threats to their security and stability. Although no one has a “right to adopt” (all prospective foster and adoptive parents must be otherwise qualified) this legislation provides government sanction to discrimination that affects the most vulnerable amongst us. Statistics bear out that LGBT families are more likely to adopt hard-to-place children (older children, children with special needs, etc.). Closing the door to our families, this legislation imposes a life-long burden on these children.
If Michigan really has the best interests of its children at heart, the Legislature should begin not with restricting the availability of loving families, but by doing everything it can to provide its children with the safety, security, and loving support that a legally recognized forever family provides. An excellent first step would be to pass legislation the Second Parent Adoption, which has been introduced nearly every year without so much as a vote. Such legislation – very similar to familiar step-parent adoption laws – would create a legal bond between a child and her second parent. This legislation, which is so very clearly in the best interests of children, has also been stalled in Michigan’s legislature as some lawmakers trot out the same religious-based objections.
It is precisely because Michigan and most state laws do not provide our children with adequate protection and access to all loving, forever homes, that Family Equality Council strongly supports the passage of the Every Child Deserves a Family Act, a federal law that would prohibit state agencies that receive federal funds from excluding a prospective foster or adoptive parent, delaying or denying placement of a child, or requiring different or additional screenings because of the sexual orientation, gender identity or marital status of the prospective parent or child.
This law strikes the right balance between “religious liberty” and civic rights and responsibilities. While private faith-based agencies could continue their discriminatory and hurtful policies, ECDF would ensure government funded adoption agency focus remains where it has always belonged – on the best interests of the children.