by David Closson
September 17, 2018
On Friday, a federal judge ruled that Dumont v. Lyon, the ACLU’s lawsuit against the Michigan Department of Health and Human Services, may proceed, finding that the plaintiffs—two same-sex couples who allege they were turned away by certain faith-based placing agencies when they sought to adopt—have standing to sue.
In denying the Defendant’s motion to dismiss, the Clinton-appointed District Judge, Paul D. Borman, ruled that the couples have demonstrated plausible Establishment Clause and Equal Protection claims that are “fairly traceable” to the defendant’s practice of entering into contracts with faith-based agencies that operate according to their religious beliefs about marriage. Michigan state law since 2015 has protected the conscience rights of faith-based adoption providers.
In his ruling, Judge Borman explained that because faith-based agencies process 20 percent of the active foster care and adoption cases in Michigan, it is “reasonable to infer that the ability of faith-based agencies to employ religious criteria as a basis to turn away same-sex couples erects at least a 20% barrier to that Prospective Parent Plaintiffs’ ability to adopt or foster a child in the State of Michigan.” Noticeably absent from Judge Borman’s comments on this point is that the ACLU’s clients in the case live closer to four other foster and adoption agencies than St. Vincent Catholic Charities, a co-defendant in the case. All four agencies facilitate adoptions for same-sex couples.
Significant for this case—and others moving forward—Borman cites the Plaintiff’s claim of “stigmatic injury” alongside “practical injuries” as grounds for allowing their Establishment Clause claims to proceed. In addition to claiming that Michigan’s law makes it more difficult for them to adopt, the same-sex couples allege that the state’s practice of contracting with faith-based agencies with religious convictions constitutes a form of harmful discrimination. This is an appeal to “dignitary harm,” a concept that refers to the alleged emotional pain and humiliation suffered when someone disagrees with another’s moral decisions or lifestyle; the notion is increasingly invoked by activists who want to silence dissent from anyone who disagrees with the LGBT agenda.
The longest section in the 93-page ruling was Borman’s rationale for why, in his view, the Plaintiffs have credibly alleged an Establishment Clause violation. The Plaintiffs believe the implementation of Michigan law constitutes an endorsement and promotion of religion which is prohibited by the Establishment Clause. Concurring with the Plaintiffs, Borman employs the second and third prongs of the Lemon test to establish whether Michigan’s law conveys the message that the state endorses the view that opposes same-sex marriage. According to Borman, “The answer is yes.” In an important paragraph he argues that “Plaintiffs plausibly allege and suggest that the State’s practice of contracting with and permitting faith-based child placing agencies to turn away same-sex couples has both a subjective purpose of discriminating against those who oppose the view of the faith-based agencies and objectively endorses the religious view of those agencies that same-sex marriage is wrong.”
Borman also says that while the Establishment Clause does not prohibit Michigan from entering into contracts with religious organizations, the use of religious criteria by faith-based adoption providers suggests “excessive entanglement” between the state and religion. Thus, according to Borman’s opinion, the Defendants will need to prove in the trial phase why current state law protecting faith-based adoption agencies does not constitute an inappropriate promotion of or excessive entanglement of religion.
Turning to the Plaintiff’s Equal Protection claim, Borman is more cautious but permits the claim to proceed to the discovery phase. Notably, he admits the Plaintiff’s burden to prove that Michigan’s law is motivated by anti-gay animus is “admittedly high.”
On one count Borman does rule in favor of the Defendants, finding that the Plaintiffs fail to establish taxpayer standing to assert their Establishment Clause claims. Alongside the same-sex couples, Jennifer Ludolph, a former foster child who also sued the state, objected to the use of taxpayer money to fund child-placing agencies that do not place children in same-sex households due to the provider’s religious convictions on marriage. Borman ruled that all of the Plaintiffs failed to establish taxpayer standing and dismissed with prejudice Ludolph’s claims.
In response to the decision, Mark Rienzi, an attorney with Becket representing St. Vincent said, “Today’s court ruling allows the ACLU’s lawsuit to proceed—a lawsuit aimed at forbidding the state from working with faith-based adoption agencies to help children in need. Such a result would make it much harder for thousands of children to find the loving home they each deserve. Beckett is fighting to make sure that doesn’t happen, and this is just one step along the journey in this case.”