Fighting for the freedom to foster

NICK EICHER, HOST: Next up on The World and Everything in It: the religious liberty fight over foster care.

In 2017, same-sex couple Kristy and Dana Dumont sued the state of Michigan over its partnership with Christian foster and adoption agencies. 

The couple claimed the agencies discriminated against them … because the agencies work exclusively with couples who can provide a home that includes a mother and a father. 

The legal battle that ensued over that continues today.

MARY REICHARD, HOST: The eventual decision in this case and others like it could force a choice for faith-based agencies. Do they choose between their religious beliefs or helping to find safe homes for vulnerable children?

Joining us with an update on where the case stands is Steve West. He writes the weekly Liberties roundup for WORLD Digital and he’s a fellow lawyer. Good morning, Steve!

STEVE WEST, GUEST: Good morning, Mary.

REICHARD: This case has had a lot of back and forth since 2017. Why don’t you tell us a couple of highlights just for some context?

WEST: Sure. Back in 2017, when the Dumonts brought their lawsuit, the state worked with religious foster care agencies like St. Vincent Catholic Charities, which is the one involved here. It allowed them to refer same-sex couples who wanted to foster to other agencies. But two years later, the state’s position changed when Democratic Governor Gretchen Witmer and Attorney General Dana Nessel took office.

REICHARD: And then that happened next? 

WEST: Well, Attorney General Nessel settled the lawsuit. What that meant is the state agreed to stop working with religious foster care agencies who placed only with mothers and fathers. St. Vincent wasn’t a part of the lawsuit, so it faced a decision: challenge the state’s policy or close their doors. It just couldn’t place children with same-sex couples given its belief in biblical marriage. So, St. Vincent sued the state. It claimed that the Michigan nondiscrimination law violated its First Amendment rights because it targets religion.  Eventually, a federal judge agreed. That judge blocked enforcement of the law until the matter could be tried.

REICHARD: Okay, so that takes us up through last year. But then a federal appeals court issued a decision this month. What did that ruling say?

WEST: That decision by the 6th Circuit was a procedural one, yet it shows how much is at stake here and how fierce the battle. The court allowed the lesbian couple that started all this, the Dumonts, to be a party to this action, in other words, to intervene. So, not just the state would be involved but them also. 

REICHARD: Well you know that sounds an awful lot like political machinations as much as strictly legal consideration. Steve, is this a contingency plan of some kind?

WEST: Well, it could be. The Dumonts and those backing them may be concerned that, politics being what it is, the state could change its position once again after the November election. Neither the attorney general or the governor are up for reelection this year, but Governor Witmer has been floated as a possible running mate for Democrat Joe Biden. 

REICHARD: Mmm. And that is a big question, isn’t it?

WEST: Huge. He has to pick her and he has to win for her to be replaced. It’s more likely the legislature, which is in control of Republicans, could seek to take some action to constrain the attorney general’s position. The other possibility is that the Dumonts—who have already adopted through another agency—don’t believe the state will be as aggressive in defending their position as they will. But again, it just shows how the battlelines have been drawn—not just for adoption agencies but for religious people and religious organizations anywhere who are concerned about the breadth of these nondiscrimination laws.

REICHARD: This one is headed for the Supreme Court. Which means I’ll get to cover it next term on Legal Docket! Tell us about the similar case the court has already agreed to hear next term.

WEST: Well, what happened in that case is the City of Philadelphia barred Catholic Social Services from placing foster kids because of their Biblical beliefs about marriage. This, even though the city has a foster care crisis, with 6,000 kids in care at any given time. The difference in this case is that the courts have not required Philadelphia to keep working with the agency while the decision is appealed. That means kids are getting left behind.

But let’s take heart. A friend of mine who heads an adoption agency told me recently, “Christian families still want to adopt, donors still faithfully give, and birthmothers still want to make adoption plans.” Lawsuits and rumors of lawsuits won’t stop that.

REICHARD: Steve West writes the Liberties roundup for WORLD Digital. We’ll link to his work in the transcript of today’s program. Thanks so much for joining us today!

WEST: Thanks for having me back, Mary.

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