On September 26, 2019, a federal district court temporarily enjoined the State of Michigan’s attempt to chase faith-based foster care and adoption agencies out of the public square—and out of business. This is a first-of-its-kind win for these ministries, and the court’s 32-page opinion sends a clear message to Michigan officials: discrimination against people of faith cannot be permitted. This case also highlights how a change in government policy that removed a crucial protection for faith-based organizations can constitute illegal religious targeting. As the court explained, it is unconstitutional for the government to “stamp out St. Vincent’s religious belief” and replace it with “State-orthodoxy.” This win for faith-based agencies is especially important today, as we need “all hands-on deck” to find more homes for kids in need.
Like most states, Michigan has a chronic shortage of families willing to foster or adopt. There are nearly 12,000 children in foster care in Michigan, and over 3,300 of these children are waiting for a family to adopt them. To help meet this need, Michigan partners with over ninety private foster care agencies and sixty private adoption agencies. Many of these agencies have specialties: some care only for kids with disabilities, some focus on caring for children with mental or behavioral issues, some are faith-based, some care primarily for racial minorities, some have received special accolades for their work with LGBTQ individuals, and some only place Native American children.
Faith-based agencies are uniquely positioned to serve those most in need, and their religious affiliation allows them to recruit successful foster families that other agencies can’t—increasing the number of homes available for kids in need. One study showed that 36% of families recruited by a Christian organization said they would not have become foster or adoptive parents but for the efforts of that agency. And families recruited by faith-based agencies typically foster for much longer than families recruited by other agencies, which helps to reduce the harmful effects of foster parent turnover.
Recognizing the “substantial benefit” that faith-based agencies provide to Michigan’s children, the State Legislature in 2015 passed a law designed to ensure that these agencies can continue caring for kids in need. This law prohibits Michigan from requiring faith-based agencies to provide services that conflict with their sincere religious beliefs. The law also requires faith-based agencies to refer families with whom they cannot partner to other nearby agencies. This is something that most faith-based agencies were already doing, and this is a common practice for all foster care and adoption agencies when they cannot meet the needs of a family that approaches them.
But Michigan’s willingness to partner with faith-based agencies was cast into doubt in early 2019. As the court explained, “the State pivoted 180 degrees” following the election of Attorney General Dana Nessel. Prior to her election, Nessel called the 2015 law’s supporters “hate mongers” who disliked gay people more than they cared about children. And she claimed that the 2015 law’s “only purpose is discriminatory animus.” It was thus no surprise the Attorney General spearheaded a new policy that ignored the 2015 law, violated the U.S. Constitution, and targeted faith-based agencies with religious beliefs different from her own. If enforced, this policy would require faith-based agencies across Michigan to either violate their beliefs or shut down. It was in response to this new policy that St. Vincent—in partnership with its volunteers and the families it serves—filed suit to continue caring for kids in need.
After briefing and oral argument on St. Vincent’s preliminary injunction motion, the district court maintained the status quo and granted St. Vincent the relief it requested under the Free Exercise Clause. In reaching this conclusion, the court looked to the state’s justifications for its new policy, along with the statements made by government decisionmakers, and found that Michigan’s actions merited the most exacting level of constitutional scrutiny because they “all point toward religious targeting.”
Applying this heightened scrutiny, the court rejected as pretextual both of the state’s alleged rationales for the new policy. First, the court held that the facts “strongly suggest the State’s real goal is not to promote non-discrimination . . . but to stamp out St. Vincent’s religious belief.” The court even noted that the new policy would effectively “prevent Catholic believers from participating” in this ministry. Second, the court rejected the State’s bizarre claim that closing down St. Vincent would increase the number of homes available for kids in need. Instead, the court held that “nothing in this record” supported the state’s claim. To the contrary, the court found that St. Vincent’s referral system, if anything, allows for more foster and adoptive families to serve kids in need.
Having rejected both of Michigan’s justifications for its new policy, the court turned briefly to the harms caused by the State’s actions, finding that:
Shuttering St. Vincent would create significant disruption for the children in its care, who already face an unpredictable home life and benefit from stability. It would also hurt the foster and adoptive parents who rely on St. Vincent for support and would have to find new resources. And it would harm the employees of St. Vincent who work in the foster and adoption area, who would lose their employment.
These severe harms convinced the court that “all the preliminary injunction factors weigh in favor of granting” relief to St. Vincent, and that an injunction was necessary to prevent these harms while this case proceeds.
On October 7, 2019, Michigan appealed the court’s ruling to the Sixth Circuit Court of Appeals. We are hopeful that the Sixth Circuit will follow the district court’s lead and confirm that the government cannot target faith-based ministries for second-class treatment based solely on their religious beliefs.