U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:17−cv−13080−PDB−EAS

CLOSED

Dumont et al v. Gordon, et al Assigned to: District Judge Paul D. Borman Referred to: Magistrate Judge Elizabeth A. Stafford Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 09/20/2017 Date Terminated: 03/22/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Kristy Dumont

represented by Daniel S. Korobkin American Civil Liberties Union Fund of Michigan 2966 Woodward Ave. Detroit, MI 48201 (313) 578−6824 Fax: (313) 578−6811 Email: dkorobkin@aclumich.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ann−Elizabeth Ostrager Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 212−558−7357 Fax: 212−291−9304 Email: Ostragerae@sullcrom.com ATTORNEY TO BE NOTICED

Daniel Mach American Civil Liberties Union 915 15th St., NW Washington, DC 20005 202−675−2330 Email: dmach@aclu.org ATTORNEY TO BE NOTICED

Garrard R. Beeney Sullivan & Cromwell LLP 125 Broad St. New York, NY 10004 212−558−3737 Fax: 212−291−9007 Email: beeneyg@sullcrom.com ATTORNEY TO BE NOTICED

Hannah M. Lonky Sullivan & Cromwell LLP 125 Broad St. New York, NY 10004 212−558−3643 Fax: 212−558−3588 Email: lonkyh@sullcrom.com ATTORNEY TO BE NOTICED

James G. Mandilk Sullivan & Cromwell LLP 125 Borad St. New York, NY 10004 212−558−3774

Fax: 212−558−3588 Email: mandilkj@sullcrom.com ATTORNEY TO BE NOTICED
Jason W. Schnier Sullivan & Cromwell LLP 125 Broad St. New York, NY 10004 212−558−3769 Fax: 212−291−9982 Email: schnierj@sullcrom.com ATTORNEY TO BE NOTICED
Leila Rashida Siddiky Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004 212−558−3805 Fax: 212−291−9931 Email: siddikyl@sullcrom.com ATTORNEY TO BE NOTICED
Leslie Cooper ACLU Foundation 125 Broad St. 18th Floor New York, NY 10004 212−549−2584 Fax: 212−549−2650 Email: lcooper@aclu.org ATTORNEY TO BE NOTICED
Lisa M. Ebersole Sullivan & Cromwell LLP 125 Broad Street New York 10004 212−558−4096 Fax: 212−558−3588 Email: ebersolel@sullcrom.com TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Michael J. Steinberg 3145 Jeffries Hall 701 South State Street Ann Arbor, MI 48109 (734) 615−2407 Email: mjsteinb@umich.edu TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Ryan D. Galisewski Sullivan & Cromwell LLP 125 Broad St. New York, NY 10004 212−558−3102 Fax: 212−291−9324 Email: galisewskir@sullcrom.com TERMINATED: 06/04/2018 ATTORNEY TO BE NOTICED
Jay Kaplan American Civil Liberties Union Fund of Michigan 2966 Woodward Ave.

Plaintiff Dana Dumont
Plaintiff

Detroit, MI 48201 313−578−6812 Fax: 313−578−6811 Email: kaplan@aclumich.org ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann−Elizabeth Ostrager (See above for address) ATTORNEY TO BE NOTICED
Daniel Mach (See above for address) ATTORNEY TO BE NOTICED
Garrard R. Beeney (See above for address) ATTORNEY TO BE NOTICED
Hannah M. Lonky (See above for address) ATTORNEY TO BE NOTICED
James G. Mandilk (See above for address) ATTORNEY TO BE NOTICED
Jason W. Schnier (See above for address) ATTORNEY TO BE NOTICED
Leila Rashida Siddiky (See above for address) ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) ATTORNEY TO BE NOTICED
Lisa M. Ebersole (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Ryan D. Galisewski (See above for address) TERMINATED: 06/04/2018 ATTORNEY TO BE NOTICED
Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED

Erin Busk−Sutton
Plaintiff Rebecca Busk−Sutton

represented by Daniel S. Korobkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann−Elizabeth Ostrager (See above for address) ATTORNEY TO BE NOTICED
Daniel Mach (See above for address) ATTORNEY TO BE NOTICED
Garrard R. Beeney (See above for address) ATTORNEY TO BE NOTICED
Hannah M. Lonky (See above for address) ATTORNEY TO BE NOTICED
James G. Mandilk (See above for address) ATTORNEY TO BE NOTICED
Jason W. Schnier (See above for address) ATTORNEY TO BE NOTICED
Leila Rashida Siddiky (See above for address) ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) ATTORNEY TO BE NOTICED
Lisa M. Ebersole (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Ryan D. Galisewski (See above for address) TERMINATED: 06/04/2018 ATTORNEY TO BE NOTICED
Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED
represented by Daniel S. Korobkin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ann−Elizabeth Ostrager (See above for address)

Plaintiff
Jennifer Ludolph TERMINATED: 09/14/2018

ATTORNEY TO BE NOTICED
Daniel Mach (See above for address) ATTORNEY TO BE NOTICED
Garrard R. Beeney (See above for address) ATTORNEY TO BE NOTICED
Hannah M. Lonky (See above for address) ATTORNEY TO BE NOTICED
James G. Mandilk (See above for address) ATTORNEY TO BE NOTICED
Jason W. Schnier (See above for address) ATTORNEY TO BE NOTICED
Leila Rashida Siddiky (See above for address) ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) ATTORNEY TO BE NOTICED
Lisa M. Ebersole (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Ryan D. Galisewski (See above for address) TERMINATED: 06/04/2018 ATTORNEY TO BE NOTICED
Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED
represented by Ann−Elizabeth Ostrager (See above for address) ATTORNEY TO BE NOTICED
Daniel Mach (See above for address) ATTORNEY TO BE NOTICED
Garrard R. Beeney (See above for address) ATTORNEY TO BE NOTICED
Hannah M. Lonky (See above for address)

V.
Defendant
Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services TERMINATED: 03/22/2019

ATTORNEY TO BE NOTICED
James G. Mandilk (See above for address) ATTORNEY TO BE NOTICED
Jason W. Schnier (See above for address) ATTORNEY TO BE NOTICED
Leila Rashida Siddiky (See above for address) ATTORNEY TO BE NOTICED
Leslie Cooper (See above for address) ATTORNEY TO BE NOTICED
Lisa M. Ebersole (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Michael J. Steinberg (See above for address) TERMINATED: 02/28/2020 ATTORNEY TO BE NOTICED
Ryan D. Galisewski (See above for address) TERMINATED: 06/04/2018 ATTORNEY TO BE NOTICED
Jay Kaplan (See above for address) ATTORNEY TO BE NOTICED
represented by John J. Bursch Bursch Law PLLC 9339 Cherry Valley Ave SE, #78 Caledonia, MI 49316 616−450−4235 Email: jbursch@burschlaw.com TERMINATED: 01/23/2019 ATTORNEY TO BE NOTICED
Jonathan S. Ludwig MI Dept of Attorney General P.O. Box 30758 Lansing, MI 48909 517−373−7700 Fax: 517−335−1152 Email: ludwigj1@michigan.gov TERMINATED: 01/23/2019 ATTORNEY TO BE NOTICED
Joshua S. Smith MI Department of Attorney General Health Education and Family Services P.O. Box 30758 Lansing, MI 48909

Defendant Herman McCall TERMINATED: 03/22/2019
Defendant Jennifer Wrayno Acting Executive Director of the Michigan Children's Services Agency
Defendant Robert Gordon Michigan Department of Health and Human Services

517−335−7603 Email: smithj46@michigan.gov ATTORNEY TO BE NOTICED
Toni L. Harris Michigan Department of Attorney General P.O. Box 30758 Lansing, MI 48909 517−335−7603 Fax: 517335−1152 Email: harrist19@michigan.gov ATTORNEY TO BE NOTICED
represented by John J. Bursch (See above for address) TERMINATED: 01/23/2019 ATTORNEY TO BE NOTICED
Jonathan S. Ludwig (See above for address) TERMINATED: 01/23/2019 ATTORNEY TO BE NOTICED
Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Toni L. Harris (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Neil Anthony Giovanatti MI Department of Attorney General 525 W. Ottawa Street P.O. Box 30758 Lansing, MI 48909 517−335−7603 Email: giovanattin@michigan.gov ATTORNEY TO BE NOTICED
Toni L. Harris (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua S. Smith (See above for address) ATTORNEY TO BE NOTICED
Neil Anthony Giovanatti (See above for address) ATTORNEY TO BE NOTICED
Toni L. Harris (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Defendant St. Vincent Catholic Charities

represented by Daniel Ortner Becket Fund for Religious Liberty 1200 New Hampshire Ave., N.W. Suite 700 Washington, DC 20036 202−349−7211 Fax: 202−955−0090 Email: dortner@becketlaw.org TERMINATED: 11/16/2018 ATTORNEY TO BE NOTICED
Lori H. Windham The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW Suite 700 Washington, DC 20036 202−955−0095 Fax: 202−955−0090 Email: lwindham@becketlaw.org ATTORNEY TO BE NOTICED
Mark L. Rienzi The Becket Fund for Religious Liberty 1200 New Hampshire Ave., N.W. Suite 700 Washington, DC 20036 202−349−7208 Fax: 202−955−0090 Email: mrienzi@becketlaw.org ATTORNEY TO BE NOTICED
Nicholas R. Reaves The Becket Fund for Religious Liberty 1200 New Hampshire Ave. NW Suite 700 Washington, DC 20036 202−955−0095 Email: nreaves@becketlaw.org ATTORNEY TO BE NOTICED
Stephanie H. Barclay The Becket Fund for Religious Liberty 1200 New Hampshire Ave., NW Suite 700 Washington, DC 20036 202−349−7204 Fax: 202−955−0090 Email: sbarclay@becketlaw.org ATTORNEY TO BE NOTICED
William R. Bloomfield Catholic Diocese of Lansing 228 N. Walnut Street Lansing, MI 48933 517−342−2522 Email: wbloomfield@dioceseoflansing.org ATTORNEY TO BE NOTICED
William J. Perrone Dykema Gossett

Intervenor Defendant Melissa Buck
Intervenor Defendant Chad Buck

201 Townsend Capitol View Building Suite 900 Lansing, MI 48933−1551 517−374−9100 Fax: 313−374−9174 Email: wperrone@dioceseoflansing.org TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
represented by Daniel Ortner (See above for address) TERMINATED: 11/16/2018 ATTORNEY TO BE NOTICED
Lori H. Windham (See above for address) ATTORNEY TO BE NOTICED
Mark L. Rienzi (See above for address) ATTORNEY TO BE NOTICED
Nicholas R. Reaves (See above for address) ATTORNEY TO BE NOTICED
Stephanie H. Barclay (See above for address) ATTORNEY TO BE NOTICED
William R. Bloomfield (See above for address) ATTORNEY TO BE NOTICED
William J. Perrone (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
represented by Daniel Ortner (See above for address) TERMINATED: 11/16/2018 ATTORNEY TO BE NOTICED
Lori H. Windham (See above for address) ATTORNEY TO BE NOTICED
Mark L. Rienzi (See above for address) ATTORNEY TO BE NOTICED
Nicholas R. Reaves (See above for address) ATTORNEY TO BE NOTICED
Stephanie H. Barclay (See above for address) ATTORNEY TO BE NOTICED
William R. Bloomfield

Intervenor Defendant Shamber Flore
Amicus Arlan Meekhof 53 Michigan Legislators

(See above for address) ATTORNEY TO BE NOTICED
William J. Perrone (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
represented by Daniel Ortner (See above for address) TERMINATED: 11/16/2018 ATTORNEY TO BE NOTICED
Lori H. Windham (See above for address) ATTORNEY TO BE NOTICED
Mark L. Rienzi (See above for address) ATTORNEY TO BE NOTICED
Nicholas R. Reaves (See above for address) ATTORNEY TO BE NOTICED
Stephanie H. Barclay (See above for address) ATTORNEY TO BE NOTICED
William R. Bloomfield (See above for address) ATTORNEY TO BE NOTICED
William J. Perrone (See above for address) TERMINATED: 02/19/2019 ATTORNEY TO BE NOTICED
represented by David A. Cortman Alliance Defending Freedom 1000 Hurricane Shoals Road, NE Suite D−1100 Lawrenceville, GA 30043 770−339−0774 Fax: 770−339−6744 Email: dcortman@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED
Jeremy D. Tedesco Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Email: jtedesco@alliancedefendingfreedom.org ATTORNEY TO BE NOTICED
Jonathan A. Scruggs Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 480−444−0020 Fax: 480−444−0028

Email: jscruggs@ADFlegal.org ATTORNEY TO BE NOTICED

Date Filed 09/20/2017
09/20/2017 09/20/2017 09/20/2017 10/11/2017
10/11/2017 10/11/2017 10/11/2017 10/16/2017 10/24/2017
11/09/2017 11/09/2017
11/17/2017 11/20/2017 12/15/2017 12/15/2017
12/18/2017

# Docket Text
1 COMPLAINT filed by All Plaintiffs against All Defendants. Plaintiff requests summons issued. Receipt No: 0645−6405036 − Fee: $ 400. County of 1st Plaintiff: Ingham − County Where Action Arose: Wayne − County of 1st Defendant: Ingham. [Previously dismissed case: No] [Possible companion case(s): None] (Kaplan, Jay) (Entered: 09/20/2017)
2 [DOCKETING ERROR] SUMMONS Issued for * All Defendants * (LGra) (Entered: 09/20/2017)
3 SUMMONS Issued for *Nick Lyon (LGra) (Entered: 09/20/2017)
4 SUMMONS Issued for *Herman McCall* (LGra) (Entered: 09/20/2017)
5 WAIVER OF SERVICE Returned Executed. Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services waiver sent on 9/28/2017, answer due 11/27/2017; Herman McCall waiver sent on 9/28/2017, answer due 11/27/2017. (Steinberg, Michael) (Entered: 10/11/2017)
6 NOTICE of Appearance by Michael J. Steinberg on behalf of All Plaintiffs. (Steinberg, Michael) (Entered: 10/11/2017)
7 NOTICE of Appearance by Daniel Mach on behalf of All Plaintiffs. (Mach, Daniel) (Entered: 10/11/2017)
8 NOTICE of Appearance by Leslie Cooper on behalf of All Plaintiffs. (Cooper, Leslie) (Entered: 10/11/2017)
9 NOTICE of Appearance by Ann−Elizabeth Ostrager on behalf of All Plaintiffs. (Ostrager, Ann−Elizabeth) (Entered: 10/16/2017)
10 STIPULATION AND ORDER to Extend Time to File Responsive Pleading re 1 Complaint, filed by Jennifer Ludolph, Erin Busk−Sutton, Dana Dumont, Rebecca Busk−Sutton, Kristy Dumont. Response due by 12/15/2017 Signed by District Judge Paul D. Borman. (DTof) (Entered: 10/24/2017)
11 ATTORNEY APPEARANCE: Joshua S. Smith appearing on behalf of Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Herman McCall (Smith, Joshua) (Entered: 11/09/2017)
12 ATTORNEY APPEARANCE: Jonathan S. Ludwig appearing on behalf of Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Herman McCall (Ludwig, Jonathan) (Entered: 11/09/2017)
13 NOTICE of Appearance by Ryan D. Galisewski on behalf of All Plaintiffs. (Galisewski, Ryan) (Entered: 11/17/2017)
14 NOTICE of Appearance by Jason W. Schnier on behalf of All Plaintiffs. (Schnier, Jason) (Entered: 11/20/2017)
15 ATTORNEY APPEARANCE: John J. Bursch appearing on behalf of All Defendants (Bursch, John) (Entered: 12/15/2017)
16 MOTION to Dismiss re 1 Complaint, , MOTION to Dismiss by Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Herman McCall. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 10, # 12 Exhibit 11, # 13 Exhibit 12, # 14 Exhibit 13) (Smith, Joshua) (Entered: 12/15/2017)
17 NOTICE of Appearance by Stephanie H. Barclay on behalf of St. Vincent Catholic Charities, Melissa Buck, Chad Buck, Shamber Flore. (Barclay, Stephanie) (Entered: 12/18/2017)

12/18/2017
12/19/2017 01/02/2018 01/02/2018 01/08/2018 01/09/2018 01/09/2018 01/23/2018 01/29/2018 01/29/2018 01/30/2018 02/06/2018 02/06/2018 02/26/2018 03/02/2018
03/05/2018 03/07/2018
03/09/2018

18 MOTION to Intervene by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Declaration of Gina Snoeyik, # 3 Exhibit 2 − Declaration of Melissa Buck, # 4 Exhibit 3 − Declaration of Shamber Raine Flore) (Barclay, Stephanie) (Entered: 12/18/2017)
19 MOTION to Dismiss by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Barclay, Stephanie) (Entered: 12/19/2017)
20 NOTICE of Appearance by Garrard R. Beeney on behalf of All Plaintiffs. (Beeney, Garrard) (Entered: 01/02/2018)
21 RESPONSE to 18 MOTION to Intervene in Partial Opposition filed by All Plaintiffs. (Beeney, Garrard) (Entered: 01/02/2018)
22 NOTICE OF HEARING on 18 MOTION to Intervene . Motion Hearing set for 3/7/2018 02:00 PM before District Judge Paul D. Borman (DTof) (Entered: 01/08/2018)
23 ATTORNEY APPEARANCE: Mark L. Rienzi appearing on behalf of Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities (Rienzi, Mark) (Entered: 01/09/2018)
24 REPLY to Response re 18 MOTION to Intervene filed by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Attachments: # 1 Exhibit 1 − Second Declaration of Melissa Buck) (Barclay, Stephanie) (Entered: 01/09/2018)
25 NOTICE OF HEARING on 16 MOTION to Dismiss re 1 Complaint, MOTION to Dismiss . Motion Hearing set for 3/28/2018 02:00 PM before District Judge Paul D. Borman (DTof) (Entered: 01/23/2018)
TEXT−ONLY NOTICE: Motion Hearing set for 03/28/2018 is Cancelled. (DTof) (Entered: 01/29/2018)
Set/Reset Deadlines as to 16 MOTION to Dismiss re 1 Complaint, MOTION to Dismiss . Response due by 2/6/2018 Reply due by 3/2/2018 *Hearing date to be determined after motion to intervene has been decided* (DTof) (Entered: 01/29/2018)
26 MOTION for Leave to File Amicus Brief by Arlan Meekhof. (Attachments: # 1 Exhibit A − Amicus Brief, # 2 Exhibit Attachment 1 to Amicus Brief) (Tedesco, Jeremy) (Entered: 01/30/2018)
27 NOTICE of Appearance by David A. Cortman on behalf of Arlan Meekhof. (Cortman, David) (Entered: 02/06/2018)
28 RESPONSE to 16 MOTION to Dismiss re 1 Complaint, MOTION to Dismiss filed by All Plaintiffs. (Beeney, Garrard) (Entered: 02/06/2018)
29 ORDER granting 26 Motion for Leave to File Amicus Brief. Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/26/2018)
30 REPLY to Response re 16 MOTION to Dismiss re 1 Complaint, MOTION to Dismiss filed by Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Herman McCall. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Brent v. Wayne Cty. Dept of Human Servs.) (Smith, Joshua) (Entered: 03/02/2018)
31 ORDER Granting 18 MOTION to Intervene as to Vincent Catholic Charities. *Hearing progressing as to remaining proposed intervenor defendants* Signed by District Judge Paul D. Borman. (DTof) (Entered: 03/05/2018)
Minute Entry for proceedings before District Judge Paul D. Borman: Motion Hearing held on 3/7/2018 re 18 MOTION to Intervene filed by Chad Buck, St. Vincent Catholic Charities, Shamber Flore, Melissa Buck Disposition: Motion taken under advisement (Court Reporter: Leann Lizza) (DTof) (Entered: 03/07/2018)
32 NOTICE of Appearance by William J. Perrone on behalf of Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Perrone, William) (Entered: 03/09/2018)

03/15/2018
03/22/2018
03/23/2018 03/23/2018 03/27/2018 03/27/2018 04/03/2018 04/20/2018 05/01/2018 05/01/2018 05/01/2018 05/04/2018 05/09/2018 06/04/2018 07/05/2018 07/09/2018 07/10/2018

33 TRANSCRIPT of Motion to Intervene held on 03/07/2018. (Court Reporter: Leann S. Lizza) (Number of Pages: 40) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 4/5/2018. Redacted Transcript Deadline set for 4/16/2018. Release of Transcript Restriction set for 6/13/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 03/15/2018)
34 ORDER granting Melissa Buck, Chad Buck and Shamber Flore's 18 Motion to Intervene (ECF NO. 18 ] Plaintiff's shall respond to the Defendant−Intervenors' Motion to Dismiss on or before April 12, 2018. Intervening Defendants shall reply on or before April 26, 2018. The Court will hold a hearing on May 10, 2018 at 2:30 p.m. on both the State Defendants' (ECF No. 16 and the Intervening Defendants' motions to dismiss. Signed by District Judge Paul D. Borman. (DWor) (Entered: 03/22/2018)
Set/Reset Deadlines as to 19 MOTION to Dismiss . Response due by 4/12/2018 Reply due by 4/26/2018 (DTof) (Entered: 03/23/2018)
35 NOTICE OF HEARING on 16 MOTION to Dismiss re 1 Complaint, MOTION to Dismiss , 19 MOTION to Dismiss . Motion Hearing set for 5/10/2018 02:30 PM before District Judge Paul D. Borman (DTof) (Entered: 03/23/2018)
Set/Reset Deadlines as to 19 MOTION to Dismiss . Response due by 4/20/2018 Reply due by 5/4/2018 (DTof) (Entered: 03/27/2018)
36 RE−NOTICE OF HEARING on 16 MOTION to Dismiss re 1 Complaint, 19] MOTION to Dismiss . Motion Hearing RESET for 5/22/2018 11:00 AM before District Judge Paul D. Borman (DTof) (Entered: 03/27/2018)
RESET (TIME ONLY) Deadlines as to 16 MOTION to Dismiss re 1 Complaint, MOTION to Dismiss , 19 MOTION to Dismiss . Motion Hearing set for 5/22/2018 10:00 AM before District Judge Paul D. Borman (DTof) (Entered: 04/03/2018)
37 RESPONSE to 19 MOTION to Dismiss filed by All Plaintiffs. (Beeney, Garrard) (Entered: 04/20/2018)
38 MOTION for Leave to File Excess Pages by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Barclay, Stephanie) (Entered: 05/01/2018)
39 ORDER granting 38 Motion for Leave to File Excess Pages. Signed by District Judge Paul D. Borman. (DTof) (Entered: 05/01/2018)
40 NOTICE of Appearance by Jonathan A. Scruggs on behalf of Arlan Meekhof. (Scruggs, Jonathan) (Entered: 05/01/2018)
41 REPLY to Response re 19 MOTION to Dismiss filed by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Barclay, Stephanie) (Entered: 05/04/2018)
RESET HEARING as to 16 MOTION to Dismiss re 1 Complaint, MOTION to Dismiss , 19 MOTION to Dismiss . Motion Hearing RESET for 7/12/2018 10:00 AM before District Judge Paul D. Borman (DTof) (Entered: 05/09/2018)
42 ORDER of Attorney Withdrawal with stipulation. Signed by District Judge Paul D. Borman. (DTof) (Entered: 06/04/2018)
43 NOTICE of Appearance by Daniel Ortner on behalf of Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Ortner, Daniel) (Entered: 07/05/2018)
45 ORDER to Strike 44 Notice (Other) filed by Chad Buck, St. Vincent Catholic Charities, Shamber Flore, Melissa Buck. Signed by District Judge Paul D. Borman. (DTof) (Entered: 07/09/2018)
46 ORDER Setting time limits for oral argument. Signed by District Judge Paul D. Borman. (DTof) (Entered: 07/10/2018)

07/12/2018
07/16/2018 07/18/2018
09/14/2018 09/17/2018 09/17/2018 09/28/2018 09/28/2018 09/28/2018 10/12/2018 10/15/2018 10/15/2018 10/15/2018 10/19/2018 10/25/2018 10/31/2018

Minute Entry for proceedings before District Judge Paul D. Borman: Motion Hearing held on 7/12/2018 re 16 MOTION to Dismiss re 1 Complaint, MOTION to Dismiss filed by Herman McCall, Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, 19 MOTION to Dismiss filed by Chad Buck, St. Vincent Catholic Charities, Shamber Flore, Melissa Buck Disposition: Motions taken under advisement (Court Reporter: Leann Lizza) (DTof) (Entered: 07/12/2018)
47 NOTICE by All Plaintiffs of Supplemental Authority (Attachments: # 1 Exhibit) (Beeney, Garrard) (Entered: 07/16/2018)
48 TRANSCRIPT of Defendants' and Defendant−Intervenors' Motions To Dismiss held on 07/12/2018. (Court Reporter: Leann S. Lizza) (Number of Pages: 110) The parties have 21 days to file with the court and Court Reporter a Redaction Request of this transcript. If no request is filed, the transcript may be made remotely electronically available to the public without redaction after 90 days. Redaction Request due 8/8/2018. Redacted Transcript Deadline set for 8/20/2018. Release of Transcript Restriction set for 10/16/2018. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date, the transcript is publicly available. (Lizza, L.) (Entered: 07/18/2018)
49 OPINION AND ORDER denying in large part 19 Motion to Dismiss AND 16 Motion to Dismiss, and just dismissing the claims of Plaintiff Ludolph for lack of standing. Signed by District Judge Paul D. Borman. (DTof) (Entered: 09/14/2018)
50 SCHEDULING ORDER: Fact Discovery due by 1/2/2019; Dispositive Motion Cut−off set for 2/28/2019 − Signed by District Judge Paul D. Borman. (Refer to image for additional dates) (DTof) (Entered: 09/17/2018)
51 AMENDED SCHEDULING ORDER: Fact Discovery due by 1/2/2019; Dispositive Motion Cut−off set for 2/28/2019 − Signed by District Judge Paul D. Borman. (Refer to image for additional dates) (DTof) (Entered: 09/17/2018)
52 ANSWER to Complaint with Affirmative Defenses by Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Herman McCall. (Smith, Joshua) (Entered: 09/28/2018)
53 MOTION for Leave to Appeal pursuant to 28 USC 1292(b) by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Rienzi, Mark)[MOTION FOR CERTIFICATION AND FOR STAY OF FURTHER PROCEEDINGS] Modified on 10/1/2018 (DPer). (Entered: 09/28/2018)
54 ANSWER to Complaint with Affirmative Defenses by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Rienzi, Mark) (Entered: 09/28/2018)
55 RESPONSE to 53 MOTION for Leave to Appeal pursuant to 28 USC 1292(b) filed by All Plaintiffs. (Ostrager, Ann−Elizabeth) (Entered: 10/12/2018)
56 WITNESS LIST by Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Herman McCall (Smith, Joshua) (Entered: 10/15/2018)
57 WITNESS LIST by All Plaintiffs (Ostrager, Ann−Elizabeth) (Entered: 10/15/2018)
58 WITNESS LIST by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities (Rienzi, Mark) (Entered: 10/15/2018)
59 REPLY to Response re 53 MOTION for Leave to Appeal pursuant to 28 USC 1292(b) filed by Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Rienzi, Mark) (Entered: 10/19/2018)
60 OPINION AND ORDER denying 53 Motion for Leave to Appeal. Signed by District Judge Paul D. Borman. (DTof) (Entered: 10/25/2018)
61 Joint MOTION Modify Scheduling Order re 51 Scheduling Order, by All Plaintiffs. (Ostrager, Ann−Elizabeth) (Entered: 10/31/2018)

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11/14/2018 11/16/2018 11/28/2018 11/30/2018 12/18/2018 12/21/2018
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62 ORDER granting in part and denying in part 61 Motion to Modify Scheduling Order. Signed by District Judge Paul D. Borman. (DTof) (Entered: 11/02/2018)
63 AMENDED SCHEDULING ORDER: Fact Discovery due by 2/18/2019 Dispositive Motion Cut−off set for 4/15/2019 Signed by District Judge Paul D. Borman. (Refer to image for additional dates) (DTof) (Entered: 11/13/2018)
64 NOTICE of Appearance by Nicholas R. Reaves on behalf of Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Reaves, Nicholas) (Entered: 11/14/2018)
65 NOTICE of Appearance by Lori H. Windham on behalf of Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Windham, Lori) (Entered: 11/14/2018)
66 ORDER of Attorney Withdrawal with stipulation. Signed by District Judge Paul D. Borman. (DTof) (Entered: 11/16/2018)
67 NOTICE of Appearance by James G. Mandilk on behalf of All Plaintiffs. (Mandilk, James) (Entered: 11/28/2018)
68 NOTICE of Appearance by Hannah M. Lonky on behalf of All Plaintiffs. (Lonky, Hannah) (Entered: 11/30/2018)
69 NOTICE of Appearance by Lisa M. Ebersole on behalf of All Plaintiffs. (Ebersole, Lisa) (Entered: 12/18/2018)
70 STIPULATED PROTECTIVE ORDER REGARDING HEALTH AND CONFIDENTIAL INFORMATION. Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/21/2018)
71 STIPULATED 502(d) ORDER. Signed by District Judge Paul D. Borman. (DTof) (Entered: 12/21/2018)
72 NOTICE of Appearance by Leila Rashida Siddiky on behalf of All Plaintiffs. (Siddiky, Leila) (Entered: 01/22/2019)
73 STIPULATED ORDER Allowing Withdrawal of Attorneys Jonathan S. Ludwig and John J. Bursch. Signed by District Judge Paul D. Borman. (JOwe) (Entered: 01/23/2019)
74 MOTION to Stay by All Plaintiffs. (Ostrager, Ann−Elizabeth)[FILED BY PLAINTIFFS AND STATE DEFENDANTS] Modified on 1/24/2019 (DPer). (Entered: 01/23/2019)
75 MOTION to Expedite Motion to Stay Proceedings by All Plaintiffs. (Ostrager, Ann−Elizabeth)[FILED BY PLAINTIFFS AND STATE DEFENDANTS] Modified on 1/24/2019 (DPer). (Entered: 01/23/2019)
76 ORDER granting in part and denying in part 74 Motion to Stay; granting 75 Motion to Expedite. Signed by District Judge Paul D. Borman. (DTof) (Entered: 01/24/2019)
Set/Reset Scheduling Order Deadlines: Fact Discovery due by 3/20/2019; Expert Discovery due by 4/17/2019 (DTof) (Entered: 01/24/2019)
77 NOTICE of Appearance by William R. Bloomfield on behalf of Chad Buck, Melissa Buck, Shamber Flore, St. Vincent Catholic Charities. (Bloomfield, William) (Entered: 02/08/2019)
78 ORDER of Attorney Substitution with stipulation. Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/19/2019)
79 MOTION TO EXTEND Stay of Proceedings by Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Herman McCall. (Smith, Joshua) (Entered: 02/22/2019)
80 MOTION Immediate Consideration of Motion for Stipulated Extension of Stay of Proceedings re 79 MOTION TO EXTEND Stay of Proceedings by Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services, Herman McCall. (Smith, Joshua) (Entered: 02/22/2019)

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03/22/2019 03/22/2019 03/22/2019 02/20/2020 02/20/2020 02/24/2020 02/28/2020
03/05/2020 03/11/2020
03/11/2020 03/11/2020 03/18/2020

81 ORDER Granting 80 MOTION Immediate Consideration of Motion for Stipulated Extension of Stay of Proceedings and 79 MOTION TO EXTEND Stay of Proceedings filed by Herman McCall, Nick Lyon, in his official capacity only as Executive Director of the Michigan Department of Health and Human Services. ( Fact Discovery due by 4/22/2019, Dispositive Motion Cut−off set for 6/14/2019) − Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/22/2019)
82 STIPULATION of Dismissal by All Plaintiffs (Ostrager, Ann−Elizabeth) (Entered: 03/22/2019)
83 STIPULATED ORDER DISMISSING CASE − Signed by District Judge Paul D. Borman. (DTof) (Entered: 03/22/2019)
84 ORDER Editing Caption. Signed by District Judge Paul D. Borman. (SSch) (Entered: 03/22/2019)
85 NOTICE of Appearance by Toni L. Harris on behalf of Robert Gordon, Jennifer Wrayno. (Harris, Toni) (Entered: 02/20/2020)
86 NOTICE by Robert Gordon, Jennifer Wrayno of Dumonts' Demand (Attachments: # 1 Exhibit A − Dumont Correspondence, January 23, 2020) (Harris, Toni) (Entered: 02/20/2020)
87 MOTION to Reopen Case for Purposes of Enforcing Settlement Agreement by All Plaintiffs. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (Ostrager, Ann−Elizabeth) (Entered: 02/24/2020)
88 ORDER of Attorney Substitution with stipulation. Attorney Daniel S. Korobkin for Erin Busk−Sutton,Daniel S. Korobkin for Rebecca Busk−Sutton,Daniel S. Korobkin for Dana Dumont,Daniel S. Korobkin for Kristy Dumont added. Signed by District Judge Paul D. Borman. (DTof) (Entered: 02/28/2020)
89 RESPONSE to 87 MOTION to Reopen Case for Purposes of Enforcing Settlement Agreement filed by St. Vincent Catholic Charities. (Rienzi, Mark) (Entered: 03/05/2020)
90 STIPULATION AND ORDER to Extend Time to File Response re 87 MOTION to Reopen Case for Purposes of Enforcing Settlement Agreement filed by Jennifer Ludolph, Erin Busk−Sutton, Dana Dumont, Rebecca Busk−Sutton, Kristy Dumont. Response due by 3/12/2020 Signed by District Judge Paul D. Borman. (DTof) (Entered: 03/11/2020)
91 NOTICE of Appearance by Neil Anthony Giovanatti on behalf of Robert Gordon, Jennifer Wrayno. (Giovanatti, Neil) (Entered: 03/11/2020)
92 RESPONSE to 87 MOTION to Reopen Case for Purposes of Enforcing Settlement Agreement filed by All Defendants. (Harris, Toni) (Entered: 03/11/2020)
93 REPLY to Response re 87 MOTION to Reopen Case for Purposes of Enforcing Settlement Agreement filed by All Plaintiffs. (Ostrager, Ann−Elizabeth) (Entered: 03/18/2020)

 
 2:17-cv-13080-PDB-EAS Doc # 1 Filed 09/20/17 Pg 1 of 22 Pg ID 1

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; REBECCA BUSKSUTTON; and JENNIFER LUDOLPH,
Plaintiffs,

Civil Action No.:

v.

NICK LYON, in his official capacity as the Director of the Michigan Department of Health and Human Services; and HERMAN MCCALL, in his official capacity as the Executive Director of the Michigan Children’s Services Agency,

COMPLAINT

Defendants.

INTRODUCTION 1. Plaintiffs bring this complaint to challenge Defendants’ practice of permitting state-contracted and taxpayer-funded child placing agencies to use religious criteria to screen prospective foster and adoptive parents for children in the foster care system and to turn away qualified families on the basis of sexual orientation. This practice harms vulnerable children by denying them access to loving families that they desperately need and violates the Establishment and Equal Protection Clauses of the United States Constitution. This action does not in any way challenge the right of any private child placing agency to practice its religion, but when the State of Michigan (the “State”) hires private child placing agencies to provide child welfare services for children

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in state custody, it must ensure that those services are provided based on the needs of the children and in accordance with the United States Constitution.
2. The Michigan Department of Health and Human Services (“DHHS”) is responsible for the approximately 13,000 children who are in the State’s foster care system because they have been removed from their families by the State due to abuse or neglect or otherwise became wards of the State. Among the State’s responsibilities to these children is finding appropriate foster and adoptive families to care for them.
3. DHHS has chosen to contract out public adoption and foster care services to private agencies and pays these agencies with taxpayer funds to perform this government function. Some of these agencies refuse to accept prospective families headed by same-sex couples or to place children with same-sex parent families due to the agencies’ religious objections to such families. DHHS is aware that these agencies are turning away these potentially qualified families solely for religious reasons but DHHS has not stopped them from engaging in this conduct.
4. By statute, the State is responsible for the care of the children who are in Michigan’s foster care system, and the State can neither categorically turn away gay and lesbian prospective parents nor use religious criteria in making decisions related to child welfare. When the State delegates its statutory child-welfare responsibilities to private agencies, those private agencies must execute their state-contracted responsibilities subject to the same requirements applicable to the State.
5. Plaintiffs Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton are two prospective adoptive families that were turned away by state-contracted and
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taxpayer-funded child placing agencies based on those agencies’ religious objections to same-sex couples. These couples are ready, willing, and able to provide a “forever family” to children in the foster care system.
6. Plaintiff Jennifer Ludolph was in the Michigan foster care system when she was a teenager. As a taxpayer, she objects to her taxpayer dollars funding child-placing agencies that make it even harder for foster children to find families by turning away loving and qualified families simply because of the agencies’ religious objections to those families.
7. All Plaintiffs are Michigan taxpayers who object to their taxpayer dollars being used to pay for public child welfare services that are provided based on religious standards rather than professional child welfare standards. And all Plaintiffs object to the use of taxpayer funds to underwrite and endorse religious beliefs to which they do not subscribe.
8. This action concerns only the State’s provision of taxpayer-funded government services based on religious and discriminatory criteria. It does not challenge any private agency’s provision of private adoption services or use of non-public funds.
9. DHHS itself could not deny children in the foster care system access to qualified prospective foster and adoptive parents based on religious criteria. For example, DHHS could not reject applicants on the basis of a religious objection to placing children with non-Christian, single-parent or same-sex parent families. Nor could DHHS refuse to accept prospective foster and adoptive parents on the basis of sexual orientation. The same is true when the State delegates this government function to
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private agencies and pays them with taxpayer dollars. In other words, private agencies performing a public function with taxpayer dollars and under contract with the State cannot perform actions that would be unconstitutional if performed directly by the State.
10. The Establishment Clause of the First Amendment bars the State from providing or refusing to provide government services, such as the care of children in the foster care system, based on religious criteria. The Establishment Clause also prohibits the State from delegating a government function to religious organizations and then allowing those organizations to perform that government function pursuant to religious criteria.
11. The State’s practice of funding and contracting with private religious organizations that use religious criteria to screen potential foster and adoption applicants is not a permissible accommodation of religion because it fails to take adequate account of the burdens imposed on children—specifically, the children whom the State hires these agencies to serve. The State’s practice of allowing religious-based exclusions of prospective foster and adoptive parents reduces placement options for the most vulnerable children. As a result, some children may be placed with families that are less well-suited to meet their needs, some children may be separated from siblings and some children may age out of foster care without ever becoming part of a family.
12. Moreover, the Equal Protection Clause of the Fourteenth Amendment prohibits the State from discriminating on the basis of sexual orientation through instrumentalities of the State.
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13. Accordingly, Plaintiffs bring this action pursuant to 42 U.S.C. § 1983 and seek declaratory and injunctive relief directing officials of DHHS and its sub-agency, the Children’s Services Agency (“CSA”), to ensure that private child placing agencies that are contracted by the State and funded with tax dollars to provide adoption and foster care services to children, do not turn away same-sex couples or other potentially qualified families based on religious eligibility criteria.
JURISDICTION AND VENUE 14. This is an action for declaratory and injunctive relief to enforce the constitutional rights of Plaintiffs under the First and Fourteenth Amendments of the United States Constitution. 15. This Court has subject matter jurisdiction over Plaintiffs’ claims arising under the First and Fourteenth Amendments of the United States Constitution and 42 U.S.C. § 1983 pursuant to 28 U.S.C. § 1331 (general federal question jurisdiction) and § 1343 (civil rights actions). 16. This Court has personal jurisdiction over Defendants because all Defendants are located, domiciled or incorporated in, or otherwise are present and conducting a continuous and systematic part of their general business within, the State. 17. This Court has jurisdiction to render the declaratory relief requested under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. 18. Venue is proper in this district under 28 U.S.C. § 1391(b) because Plaintiffs Erin and Rebecca Busk-Sutton and Jennifer Ludolph reside in this district, DHHS
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operates branch offices in this district, and a substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred in this district.
PARTIES 19. Plaintiffs Kristy and Dana Dumont are married and reside in Dimondale, Michigan. They desire to adopt children from the public foster care system and have been turned away by taxpayer-funded child placing agencies working under contract with the State due to religious objections to working with same-sex couples. At all relevant times, Kristy and Dana Dumont have been, and continue to be, taxpayers of the State of Michigan. 20. Plaintiffs Erin and Rebecca Busk-Sutton are married and reside in Detroit, Michigan. They also desire to adopt children from the public foster care system and have been turned away by taxpayer-funded child placing agencies working under contract with the State due to those agencies’ religious objections to working with same-sex couples. At all relevant times, Erin and Rebecca Busk-Sutton have been, and continue to be, taxpayers of the State of Michigan. 21. Plaintiff Jennifer Ludolph is a resident of Detroit, Michigan. She has been, and continues to be, a taxpayer of the State of Michigan. 22. Defendant Nick Lyon is the Director of DHHS, the State agency responsible for foster care and adoption services for children in state custody. DHHS contracts with private child placing agencies, such as Bethany Christian Services (“Bethany”) and Catholic Charities, to provide public foster care and adoption services.
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DHHS has its central offices in Lansing, Michigan, and operates branch offices in each of Michigan’s 83 counties.
23. Defendant Herman McCall is the Executive Director of CSA, a sub-agency of DHHS that, in addition to having oversight over the work of taxpayer-funded statecontracted child placing agencies, is mandated by law to “[r]eview, investigate, evaluate, and assess all programs within [DHHS] related to services and programs for children,” including by advising on policy related to “children’s services and programs including, but not limited to, services for foster children, juvenile justice, and homeless youth.” Mich. Comp. L. § 400.227.
FACTS GIVING RISE TO THIS ACTION A. Michigan’s Child Welfare System 24. DHHS is responsible for all children in the Michigan foster care system. A child’s case with DHHS typically starts after Child Protective Services removes the child from his or her family for abuse or neglect and a court orders that the child be placed into foster care. If a child ultimately cannot be reunited with his or her parents despite the provision of services to the parents and the parents’ parental rights are terminated, DHHS seeks to find a permanent family for the child, typically through adoption. DHHS’s responsibilities for children who come into its care include recruiting and identifying appropriate families to care for these children either temporarily as foster parents until the children can be reunited with their families or permanently as with adoptive families. 25. DHHS performs this public function in part by contracting with private agencies that are licensed by DHHS’s Division of Child Welfare Licensing (“DCWL”) as
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“child placing agencies” to recruit, screen, train and license prospective foster and adoptive parents and to place children in appropriate foster or adoptive homes, as authorized by Michigan statute. See Mich. Comp. L. §§ 722.11(1)(c), 722.115(3), 722.922. Although DHHS retains ultimate supervisory responsibility in all cases, much of the on-the-ground foster care and adoption work is performed by taxpayer-funded child placing agencies.
26. Through rulemaking authorized by statute, DHHS has conferred authority on private child placing agencies to make decisions regarding licensing foster parents and certifying adoptive parents, as well as the placement of children into foster and adoptive homes. See Mich. Admin. Code R. 400.12301(1), 400.12701. With this authority comes the obligation of child placing agencies to maintain ongoing recruitment programs “to ensure an adequate number of suitable and qualified homes” to meet the needs of children served by the agency. Id. R. 400.12304(1), 400.12706. The rules also give the agencies substantial discretion in evaluating applicants for foster homes or adoptive parents, id. R. 400.12310, 400.12605, as well as selecting an appropriate placement for a child into a foster or adoptive home, id. R. 400.12404, 400.12709.
27. After an agency accepts a child’s case from DHHS, it immediately begins receiving per diem compensation from the State. For example, some agencies receive at least $40 per day from the State for each adoption case that they handle. These per diem payments cease after a certain amount of time or when the child is permanently placed. The agencies also receive a lump-sum payment after placement, depending upon the outcome of the case.
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28. To fund the state’s child welfare system, the Michigan legislature annually makes appropriations for adoption and foster care services. With these appropriated funds, DHHS pays private child placing agencies under contract with the State to provide foster care and adoptive services.
29. DHHS has entered into adoption and foster care service contracts with more than 100 private child placing agencies statewide, and many of these agencies operate in multiple counties.
30. Many of the private child placing agencies under contract with the State are religiously affiliated.
31. The contracts entered into between DHHS and child placing agencies require the contracting agencies to comply with DHHS’s non-discrimination statement, which mandates that agencies “will not discriminate against any individual or group because of race, sex, religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs or disability.” This requirement “applies to all applications filed for adoption of [DHHS] supervised children, including [DHHS] supervised children assigned to a contracted agency.”
32. The contracts entered into between DHHS and child placing agencies also require each contracting agency to “develop and implement a plan for adoptive home recruitment, retention, and support consistent with” DHHS’s licensing standards applicable to the agency’s license.
33. Families interested in fostering or adopting a child out of the foster care system must submit an application for a foster care license or to be certified to adopt.
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34. Upon information and belief, each private child placing agency maintains a roster of families that it has licensed or certified that it generally uses for family placements for children assigned to its care.
35. The eligibility requirements for families interested in adopting children from the foster care system are provided in the DHHS Adoption Program Statement, also known as Publication 255. According to the Adoption Program Statement, DHHS “will not discriminate against any individual or group because of race, religion, age, national origin, color, height, weight, marital status, sex, sexual orientation, gender identity or expression, political beliefs or disability.” The Adoption Program Statement also states that “[t]he eligibility criteria for adoption of [DHHS]-supervised wards must not be more restrictive than the criteria in DHS Publication 255 when a contracted adoption agency is providing DHS adoption services.”
36. DHHS is contractually entitled to terminate its agreement with a child placing agency if the agency “[e]ngages in any conduct that may expose [DHHS] to liability” or “fails to cure a breach” of the agreement after receiving notice. The contracts also provide DHHS the right to “immediately terminate this Agreement in whole or in part without penalty and for any reason.”
37. Nonetheless, although it is aware of certain child placing agencies’ refusal to accept same-sex couples to foster or adopt children in the child welfare system, upon information and belief, DHHS has not taken any remedial action under its contracts against any private child placing agency for failure to comply with the DHHS nondiscrimination statement, DHHS Publication 255, or the United States Constitution.
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B. 2015 Michigan House Bills Nos. 4188, 4189, and 4190 38. For years, some private agencies providing foster care and adoption services under contract with the State have refused to accept same-sex couples as foster or adoptive parents because of the agencies’ religious beliefs. 39. Starting as early as 2013, members of the Michigan legislature attempted to introduce legislation that would codify and authorize the practice of permitting agencies to turn away same-sex couples on the basis of the agencies’ religious objection. The purpose of this legislation was clear. At that time, marriage for same-sex couples had been legalized in many states and some state governments, over the objection of some religiously affiliated child placing agencies, had introduced rules requiring taxpayerfunded and state-contracted agencies providing public foster care and adoption services to accept adoption and foster care applications from same-sex couples on equal terms as different-sex couples. 40. In 2013, the Families, Children and Seniors Committee of the Michigan House of Representatives considered a package of three bills, House Bills 4927, 4928, and 4991, which would preclude any state or local agency from taking “adverse action against a child placing agency on the basis that the child placing agency has declined or will decline to provide services that conflict with the child placing agency’s sincerely held religious beliefs.” 41. In discussions before the Michigan House Families, Children and Seniors Committee, the lead sponsor of the package reportedly stated that the goal of these bills
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was to codify DHHS’s practices related to entering into contracts for foster care and adoption case management services with private child placing agencies.
42. Those bills did not pass, but the effort to encode State policy and practices delegating decision-making power over child welfare services to organizations acting pursuant to religious criteria and providing protection to private agencies discriminating on the basis of sexual orientation was reprised in the 2015-2016 legislative session with Michigan House Bills 4188, 4189, and 4190.
43. During a hearing before the House on the bills on February 18, 2015, the director of clinical services at St. Vincent Catholic Charities confirmed that the organization would not work with gay and lesbian prospective parents, explaining that when prospective parents to whom they were religiously opposed approached them: “If they let us know that they’re unmarried, or they’re gay or lesbian, we immediately recommend, make a referral to another agency.”
44. The Michigan House of Representatives passed the bills in March 2015. 45. In support of the bills, some religiously affiliated child placing agencies communicated with Michigan Governor Rick Snyder. A letter from the President of Bethany asserted that to require Bethany to adhere to principles of non-discrimination would present them with “an untenable choice” of “choos[ing] between their desire to help children and families and their fidelity to their religious principles.” He stated further that “House Bills 4188–4190 are necessary” to “codify into state law what has been in practice,” and threatened that “if statewide policy changes in a way that would
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force Catholic agencies to choose between violating strongly held religious beliefs or ceasing cooperation with the state, the agencies will cease to cooperate.”
46. The President and CEO of the Michigan Catholic Conference also weighed in by letter to the Governor. He stated that Catholic agencies “handl[e] approximately twenty percent of the active foster care and adoption cases in Michigan,” and then went on to say that, “with profound concern and a sense of urgency,” he was concerned that there were objections to “the religious manner by which faith-based child placement agencies operate.”
47. On June 10, 2015, the Michigan Senate passed the bills, and the following morning, Governor Snyder signed the bills into law as 2015 Public Acts 53, 54, and 55, codified in Michigan Compiled Laws 400.5a, 722.124e, 722.124f, and 710.23g.
48. The statutes provide in relevant part that, “[t]o the fullest extent permitted by state and federal law, a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.” Mich. Comp. L. § 722.124e(2). Additionally, the statutes provide that, “[t]o the fullest extent permitted by state and federal law, the state or a local unit of government shall not take an adverse action against a child placing agency on the basis that the child placing agency has declined or will decline to provide any services that conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.” Id. § 722.124e(3). Under the statute, “services” are defined to “include[] any
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service that a child placing agency provides, except foster care case management and adoption services provided under a contract with [DHHS].” Id. § 722.124e(7)(b).
49. Some child placing agencies, including Bethany and Catholic Charities, appear to interpret these statutes as permitting taxpayer-funded state-contracted child placing agencies to turn away prospective families for children in foster care based on religious criteria.
50. In a July 2016 letter to the Michigan Attorney General’s office, counsel for Plaintiffs explained that they had received reports that some religiously affiliated taxpayer-funded state-contracted child placing agencies refused to accept same-sex couples who contacted them inquiring about adopting a child from foster care. Counsel for Plaintiffs requested a meeting to clarify the State’s position with respect to such practices. However, the Attorney General’s office refused to meet, and it did not disclaim the practice.
C. Defendants’ Authorization of Religious-Based Exclusions by Child Placing Agencies Harms Children.
51. There is a shortage of foster and adoptive families in Michigan. 52. As a result of that shortage, some children in State custody have and may continue to have multiple temporary placements before a suitable permanent home is found; other children have been and may continue to be separated from their siblings or placed in foster homes far from their school and community; some other children have been and may continue to be placed in group homes; and still other children have been
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and may continue to be unable to be adopted at all and have and will instead reach the age of majority without ever being placed with a permanent family.
53. Each time a prospective parent who is able to provide a loving and caring family for a child is turned away by a child placing agency because of a religious objection to their sexual orientation (or any other religious objection), the pool of families available for the children in the child welfare system diminishes, reducing children’s options for an appropriate placement, or any placement at all.
54. Every major professional organization dedicated to children’s welfare, including the Child Welfare League of America, the National Association of Social Workers, the National Adoption Center, the American Psychological Association, the American Psychiatric Association, the American Academy of Family Physicians, the American Academy of Pediatrics, and the American Medical Association, affirmatively states that gay and lesbian parents are as likely as heterosexual parents to provide supportive and healthy environments for their children and opposes any discrimination based on sexual orientation in matters of adoption and foster care.
55. The loss of potentially qualified families exacerbates this shortage and means some children will remain in foster care longer than necessary before being adopted into the security of a “forever family” and the State will spend more taxpayer dollars to care for them.
56. Even if there were an abundance of families willing and able to care for children in the foster care system, the religious-based exclusion of capable families means some children may be denied the family that is best matched to meet their
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individual needs. Placing children is not a one-size-fits-all endeavor, as every child has unique needs and every family brings different qualities. Unsuitable matches are less likely to be successful, and can lead to children being subjected to the instability of multiple placements.
D. Plaintiffs’ Interest in Challenging DHHS’s Practices Kristy and Dana Dumont
57. Plaintiffs Kristy and Dana Dumont have been together as a committed couple for 11 years. They married in 2011.
58. Kristy works at Michigan State University in the College of Education advising students. She is also working on her Ph.D. in Higher Adult and Lifelong Education. Dana works in the Michigan Department of Natural Resources.
59. Kristy and Dana would like to adopt a child from the foster care system. The reason they are pursuing adoption through foster care is that they want to give a permanent home to a child who needs one.
60. Kristy and Dana hope to adopt a child in foster care who may have difficulty finding a family. Kristy and Dana recently moved to the village of Dimondale because of its high-quality school district; there, they live in a home with a yard and extra bedrooms in the anticipation of children.
61. In July 2016, Kristy called St. Vincent’s Catholic Charities in Lansing and said that she and her wife were interested adopting a child from foster care. She was told that the agency does not work with same-sex couples.
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62. Kristy tried calling St. Vincent’s Catholic Charities again in March 2017. She told the person who answered the phone that she was calling to inquire about adopting a child from foster care and was transferred to the voicemail of someone in the child welfare department. Kristy left a detailed message explaining that she had previously been told that the agency did not work with same-sex couples, and asking if that was still the case. She did not get a return call.
63. Also in March 2017, Kristy called Bethany in Lansing and said that she and her wife were interested in adopting a child from the foster care system. The Bethany representative told Kristy that Bethany does not work with same-sex couples.
64. Kristy and Dana are Michigan taxpayers who object to the use of taxpayer funds to underwrite and endorse religious beliefs to which they do not subscribe. Erin and Rebecca Busk-Sutton
65. Plaintiffs Erin and Rebecca Busk-Sutton have been together as a committed couple for eight years. They married in 2014.
66. Erin works with children helping them study and prepare for standardized tests and Rebecca is a resident physician in internal medicine.
67. Erin and Rebecca would like to adopt a child from the foster care system. They are especially interested in adopting an older child or LGBT young person who may have difficulty finding a supportive family. Erin wants to use her skills as an educator to potentially assist a foster youth who may have gaps in his or her education.
68. On May 5, 2017, Erin called Bethany in Madison Heights and told the representative that she and her wife were interested in adopting a child from the foster
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care system. The Bethany representative told Erin that same-sex couples “aren’t our area of expertise” and offered to recommend a different child placing agency in Sterling Heights or Ann Arbor. Erin told the Bethany representative that those locations were far away and asked if Bethany would be willing to work with them. The Bethany representative responded again that “same-sex couples aren’t our area of expertise” and that she “didn’t think they would have a good experience with [Bethany].”
69. Erin and Rebecca are also Michigan taxpayers who object to the use of taxpayer funds to underwrite and endorse religious beliefs to which they do not subscribe. Jennifer Ludolph
70. Jennifer Ludolph is 33 years old and lives in Detroit. She works as a pharmacy technician at the University of Michigan’s hospital in Ann Arbor.
71. At the age of 13, Jennifer and her siblings were removed from their parents’ care and placed into the Michigan foster care system. After four years of instability, at age 17 she was placed with a loving couple that provided a stable home for her and three of her siblings. She feels lucky that she and her siblings landed in such a devoted and nurturing family that enabled them to thrive.
72. Jennifer now has children of her own and has also served as a foster parent. 73. Jennifer is strongly opposed to the State allowing taxpayer-funded child placing agencies hired by the state to care for children in foster care to turn away prospective foster and adoption families based on religious criteria. She believes that such practices could have prevented her from finding her family because her foster father is an atheist. She cares about the children currently in the foster care system who might
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not be placed with a loving family because suitable prospective parents are turned away for religious reasons.
74. Jennifer is a Michigan taxpayer and objects to the use of taxpayer funds to underwrite and endorse religious beliefs to which she does not subscribe.
CLAIMS FOR RELIEF COUNT I
First Amendment to the United States Constitution 75. Plaintiffs reincorporate the allegations in paragraphs 1 to 74 as if fully set forth herein. 76. DHHS has delegated to religious organizations the public function of managing foster care and adoption cases for children in Michigan’s foster care system, which includes the responsibilities of recruiting and screening foster and adoptive parents and making family placements for the children the State assigns into their care. 77. DHHS pays these religious organizations with public funds for the adoption and foster care work they perform. 78. DHHS permits these taxpayer-funded and state-contracted religious organizations to use religious eligibility criteria when screening prospective foster and adoptive families and making placement decisions for children and DHHS is aware that some of these agencies are turning away prospective families headed by same-sex couples because of religious objections. 79. DHHS’s actions harm children in the foster care system by denying them access to needed families and result in discrimination against same-sex couples like
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Plaintiffs Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton. Plaintiffs collectively are harmed by the use of taxpayer funds to underwrite and endorse religious beliefs to which they do not subscribe.
80. DHHS’s conduct described above has deprived and continues to deprive Plaintiffs of their rights protected by the Establishment Clause of the First Amendment to the United States Constitution and made actionable by 42 U.S.C. § 1983.
81. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm.
COUNT II Fourteenth Amendment to the United States Constitution 82. Plaintiffs reincorporate the allegations in paragraphs 1 to 74 as if fully set forth herein. 83. Some private child placing agencies working under contract with the State treat gay and lesbian couples unequally to heterosexual couples by categorically excluding same-sex couples from applying for and being considered to be foster or adoptive parents. 84. DHHS, through private child placing agencies that provide adoption and foster care services to children under contract with the State, is turning away same-sex couples seeking to adopt out of the foster care system, such as the Dumonts and the Busk-Suttons, because of their sexual orientation. 85. DHHS, through agencies with which it contracts, is turning away same-sex couples based on religious objections to placing children with such families.
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86. There is no legitimate government interest served by denying children access to potentially qualified families based on a religious exclusion.
87. Defendants, acting under color of state law, have violated and continue to violate the Equal Protection Clause of the United States Constitution by contracting with and funding private agencies that, in providing public adoption and foster care services, discriminate against same-sex couples seeking to become foster or adoptive parents.
88. Defendants are liable under 42 U.S.C. § 1983 for the violation of Plaintiffs’ rights.
89. Plaintiffs have no adequate remedy at law to redress the wrongs alleged herein, which are of a continuing nature and will cause irreparable harm.
RELIEF REQUESTED WHEREFORE, Plaintiffs respectfully request that the Court enter judgment in their favor and: A. Declare, pursuant to 28 U.S.C. § 2201, that the State’s practice of allowing state-contracted, taxpayer-funded child placing agencies to disqualify prospective families headed by same-sex couples based on agencies’ religious beliefs violates the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983; B. Enter an order enjoining Defendants, in their official capacities, from contracting with or providing taxpayer funding to private child placing agencies that exclude same-sex couples from consideration as foster or adoptive parents or otherwise employ religious criteria in decisions regarding the screening of prospective foster and
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2:17-cv-13080-PDB-EAS Doc # 1 Filed 09/20/17 Pg 22 of 22 Pg ID 22

adoptive parents and, other than accommodating a particular child’s religious traditions

or preferences, the placement of children into foster and adoptive homes;

C. Enter an order directing Defendants, in their official capacities, to ensure

that lesbian and gay individuals and couples are treated the same as heterosexual

individuals and couples by state-contracted child placing agencies;

D. Award Plaintiffs the costs and fees and expenses for this action, including,

inter alia, attorneys’ fees and costs incurred in connection with this action, pursuant to 42

U.S.C. § 1988;

Award such other relief as this Court deems just and proper.

/s/ Jay D. Kaplan____________________ Jay D. Kaplan (P38197) Michael J. Steinberg (P43085) Kary L. Moss (P49759) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6823 jkaplan@aclumich.org msteinberg@aclumich.org
Daniel Mach American Civil Liberties Union
Foundation 915 15th Street NW Washington, DC 20005 (202) 675-2330 dmach@aclu.org
DATED: September 20, 2017

Leslie Cooper American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2633 lcooper@aclu.org
Garrard R. Beeney Ann-Elizabeth Ostrager Ryan D. Galisewski Jason W. Schnier Sullivan & Cromwell LLP 125 Broad Street New York, NY 10004-2498 Telephone: (212) 558-4000 Facsimile: (212) 558-3588 beeneyg@sullcrom.com ostragera@sullcrom.com galisewskir@sullcrom.com schnierj@sullcrom.com

Attorneys for the Plaintiffs

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 2:17-cv-13080-PDB-EAS Doc # 31 Filed 03/05/18 Pg 1 of 3 Pg ID 731

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; REBECCA BUSK-SUTTON; and JENNIFER LUDOLPH,
Plaintiffs, v.

Case No. 17-cv-13080
Paul D. Borman United States District Judge

NICK LYON, in his official capacity as the Director of the Michigan department of Health and Human Services; and HERMAN MCCALL, in his official capacity as the Executive Director of the Michigan Children’s Services Agency,

Defendants, and

ST. VINCENT CATHOLIC CHARITIES,

Intervening Defendant. _____________________________________/

ORDER GRANTING UNOPPOSED MOTION OF ST. VINCENT CATHOLIC CHARITIES TO INTERVENE

On December 18, 2017, St. Vincent Catholic Charities (“St. Vincent”), Melissa

Buck, Chad Buck and Shamber Flore filed a motion to intervene as Defendants in this

matter. (ECF No. 18.) The Proposed Intervenor Defendants received concurrence in

1

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their motion from the Defendants. (ECF No. 18, Mot. at 3, PgID 419.) On January 2, 2018, Plaintiffs filed a “Response in Partial Opposition to Motion to Intervene.” (ECF No. 21.) Plaintiffs oppose the intervention of Chad Buck, Melissa Buck, and Shamber Flore but “Plaintiffs do not oppose the Motion [to Intervene] with respect to St. Vincent Catholic Charities.” (ECF No. 21, Pls.’ Resp. 1, PgID 524.) St. Vincent, having filed a timely motion to intervene that is unopposed and having otherwise satisfied the requirements of Fed. R. Civ. P. 24(a) by demonstrating a substantial legal interest in the case, an inability to protect that interest in the absence of intervention, and inadequate representation of their interest by the parties already before the Court, is entitled to intervene as of right. See Fed. R. Civ. P. 24(a)(2).
Accordingly, St. Vincent’s Unopposed Motion to Intervene is GRANTED. The Court will hold a hearing, as scheduled, on Wednesday, March 7, 2018 at 2:00 p.m., to hear argument on the motion of Chad and Melissa Buck and Shamber Flore to intervene in this case. IT IS SO ORDERED.

Dated: March 5, 2018

s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE
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2:17-cv-13080-PDB-EAS Doc # 31 Filed 03/05/18 Pg 3 of 3 Pg ID 733 CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on March 5, 2018.
s/Deborah Tofil Case Manager
3

 
 2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 1 of 27 Pg ID 777

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICIDGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; REBECCA BUSK-SUTTON; and JENNIFER LUDOLPH,
Plaintiffs,

Case No. 17-cv-13080
Paul D. Borman United States District Judge

v.

NICK LYON, in his official capacity as the Director of the Michigan department of Health and Human Services; and HERMAN MCCALL, in his official capacity as the Executive Director of the Michigan Children's Services Agency,

Defendants, and

ST. VINCENT CATHOLIC CHARITIES, MELISSA BUCK, CHAD BUCK, and SHAMBER FLORE,

Intervening Defendants.
------------------------------I
ORDER GRANTING MELISSA BUCK, CHAD BUCK, AND SHAMBER FLORE'S MOTION TO INTERVENE (ECF NO. 18)

On December 18, 2017, St. Vincent Catholic Charities ("St. Vincent"), Melissa

Buck, Chad Buck and Shamber Flore (referred to collectively as "the Individual

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Movants") filed a motion to intervene as Defendants in this matter. (ECF No. 18.) The Proposed Intervenor Defendants received full concurrence in their motion from the Defendants. (ECF No. 18, Mot. at 3, PgiD 419.) On January 2, 2018, Plaintiffs filed a "Response in Partial Opposition to Motion to Intervene." (ECF No. 21.) Plaintiffs oppose the intervention of Chad Buck, Melissa Buck, and Shamber Flore but "Plaintiffs do not oppose the Motion [to Intervene] with respect to St. Vincent Catholic Charities." (ECF No. 21, Pis.' Resp. 1, PgiD 524.) On March 5, 2018, the Court granted the unopposed motion of St. Vincent to intervene. (ECF No. 31.) On March 7, 2018, the Court heard oral argument on the motion of the Individual Movants to intervene in this case. For the reasons that follow, the Court GRANTS the motion as to each of the Individual Movants. INTRODUCTION
Plaintiffs filed their 42 U.S.C. § 1983 Complaint challenging Defendants Nick Lyon (sued in his official capacity as the Director of the Michigan Department of Health and Human Services "DHHS") and Herman McCall's (sued in his official capacity as the Executive Director of the Michigan Children's Services Agency "CSA") practice of permitting state-contracted and taxpayer-funded child placing agencies to use religious criteria to screen prospective foster and adoptive parents for children in the foster care system. Plaintiffs allege that this practice harms vulnerable
2

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children by denying them access to loving families and violates the Plaintiffs' rights protected by the Establishment Clause of the First Amendment to the United States Constitution and violates the Plaintiffs' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs are prospective adoptive same-sex couples and individuals who have contacted certain faith-based Michigan adoption agencies and been denied consideration for evaluation and recommendation to the State for adoption by those agencies based upon their same-sex status. Plaintiffs seek a declaratory judgment that these practices violate the First and Fourteenth Amendments and an Order enjoining Defendants Lyon and McCall, in their official capacities, from contracting with or providing taxpayer funding to private child placing agencies that are tasked with screening prospective foster or adoptive parents, but employ religious criteria that exclude same-sex couples from participating in their process. Plaintiffs seek an Order directing Defendants Lyon and McCall, in their official capacities, to ensure that lesbian and gay individuals and couples are treated the same as heterosexual individuals and couples by state-contracted child placement screening agencies.
Plaintiffs allege that Melissa Buck, Chad Buck, and Shamber Flore, who seek to intervene as Defendants in this action: (1) lack a substantial legal interest in the case and any interest they do have is adequately represented by other parties; and (2)
3

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lack a claim or defense that shares a common question of law or fact with the main action and allowing their intervention would unduly delay or prejudice adjudication ofthe main action. I. BACKGROUND
In 2015, the Michigan Legislature passed Mich. Comp. Laws § 722.124e, which provides in relevant part: "To the fullest extent permitted by state and federal law, a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency's sincerely held religious beliefs ...." Mich. Comp. Laws § 722.124e(2). "Services" is defined under statute to include "any service that a child placing agency provides, except foster care case management and adoption services provided under a contract with the department." Mich. Comp. Laws § 722.124e(7)(b). Plaintiffs in this action do not directly challenge the constitutionality ofthe statute, but rather challenge DlffiS's implementation ofthe statute through the practice of subsidizing faith-based agencies, including St. Vincent, that decline to evaluate and refer couples like the Dumonts and Husk-Suttons to the State as prospective foster or adoptive families based on their status as a same-sex couple.
The Michigan DlffiS is responsible for placing the approximately 13,000 children who are in the State's foster care system due to abandonment or neglect, in
4

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foster homes or with adoptive families. (Compl. ~ 2.) Through rule making authorized by statute, DHHS has chosen to contract out public foster care and adoption screening services to private child placement agencies; the State pays these agencies with taxpayer funds to perform these services. (Compl. ~~ 3, 25-28; Mich. Comp.Laws §§ 722.111(c), 722.115(3).) Aprivatechildplacementagencymayonly perform public adoption and foster care screening services related to placing children with families ifthat agency partners with and is authorized by the DHHS. (!d.) Child placement agencies are required to maintain recruitment programs to evaluate applicants for foster homes or adoptive parents, as well as selecting an appropriate placement for a child into a foster or adoptive home. (Compl. ~ 26; Mich. Admin. CodeR. 400.12101-400.1208.) Child placement agencies perform in-depth home studies assessing the characteristics offamilies that could make them suitable to adopt or foster children. (ECF No. 18, Mot. to Intervene Ex. 1, December 15, 2017 Declaration ofGina Snoeyink ~ 5.) Once a child placement agency has performed its assessment of a prospective family, it provides a written evaluation and recommendation to the State regarding foster licensing and approval ofadoption for families. DHHS makes the ultimate determination about placement of children and licensing of families for foster and adoptive purposes. (Snoeyink Decl. ~ 6.)
Some of these private agencies, like St. Vincent, are faith-based agencies that
5

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historically have declined to provide written recommendations to the State evaluating and endorsing a family situation that would conflict with its religious beliefs, such as
a same-sex or unmarried couple seeking to foster or adopt. (Snoeyink DecI. ~ 7;
Compl. ~ 38.) Ifunmarried or same-sex couples want to obtain their license through St. Vincent then, consistent with State law, St. Vincent staff provide written information on the State's website and contact information for a list of other local adoption or foster care service providers that would be willing to work with the family. (Snoeyink DecI. ~ 9.) There are seven other foster or adoption agencies in the tri-county area that are willing to work with unmarried or same-sex couples. (/d.) St. Vincent submits that it would not be able to continue its adoption and foster programs, either legally or financially, if the State were not allowed to partner with it in providing these screening programs.
According to St. Vincent, losing the State contract and authorization to perform these screening services would result in the immediate closure ofSt. Vincent's public foster and adoption programs, as well as financially impacting St. Vincent's other programs including its counseling services, and refugee resettlement, which may no longer be sustainable without partnership with the State. (Snoeyink DecI. ~ 13.) If St. Vincent were to close its adoption and foster programs, Individual Movants Chad and Melissa Buck submit that they would potentially be foreclosed from adopting
6

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 7 of 27 Pg ID 783
future siblings oftheir current adoptive sibling children and would be deprived ofthe ancillary services provided by St. Vincent, such as monthly parent support groups. (Mot. to Intervene Ex. 2, December 16, 20 17 Declaration of Melissa Buck ~~ 6-7.) If St. Vincent were forced to close its adoption and foster programs, Individual Movant Shamber Flore submits that she would be deprived of the opportunity to continue mentoring many youth from St. Vincent in her role as a volunteer at St. Vincent. (Mot. to Intervene, Ex. 3, December 15, 20 17 Declaration ofShamber Raine Flore~~ 4-5.)
Plaintiffs concede that this action directly involves St. Vincent's ability to continue to use religious criteria when performing child welfare services for the State ofMichigan, and therefore Plaintiffs do not object to St. Vincent's intervention in this action. (ECF No. 21, Pis.' Resp. 3, PgiD 532.) Through this concession, Plaintiffs necessarily acknowledge that St. Vincent has satisfied the criteria entitling it to intervene as ofright in this action, i.e. that the motion to intervene is timely filed, that St. Vincent has a substantial legal interest in this case, that St. Vincent's ability to protect that interest will be impaired in the absence of intervention, and that the existing parties to the action do not adequately represent St. Vincent's interest.
On the other hand, as to the Individual Movants who have filed jointly with St. Vincent to intervene, Plaintiffs urge the Court to reach a different conclusion and to
7

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deny them the right to intervene in this case. The Plaintiffs assert that the Individual Movants have an insubstantial, contingent, and hypothetical interest in this case and that, in any event, the interests of the Individual Movants are aligned with the interests ofanother Proposed Intervenor-Defendant, St. Vincent, whose intervention Plaintiffs do not oppose, who will adequately represent the interests ofthe Individual Movants in this case. II. LEGAL STANDARDS AND ANALYSIS
A. Intervention as of Right: Rule 24(a) Federal Rule ofCivil Procedure 24(a) provides that a non-party may intervene as of right in a pending action "when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties." Fed. R. Civ. P. 24(a). The Sixth Circuit "has interpreted Rule 24(a) as establishing four elements, each of which must be satisfied before intervention as of right will be granted: (1) timeliness of the application to intervene, (2) the applicant's substantial legal interest in the case, (3) impairment of the applicant's ability to protect that interest in the absence of intervention, and (4) inadequate representation of that interest by parties already
8

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before the court." Michigan State AFL-C/Ov. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997).
The Sixth Circuit "subscribe[s] to 'a rather expansive notion of the interest sufficient to invoke intervention of right."' Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir. 1999) (quoting Miller, 103 F.3d at 1245). The Sixth Circuit has also "reject[ed] the notion that Rule 24(a)(2) requires a specific legal or equitable interest."' Grutter, 188 F.3d at 399 (quoting Miller, 103 F.3d at 1245). In a "close case," the matter of intervention should be resolved "'in favor of recognizing an interest under Rule 24(a)."' !d. (quoting Miller, 103 F.3d at 1247). In addition, the proposed intervenor bears a "minimal burden" in establishing the impairment element ofthe intervention test: '"To satisfy [the element of impairment] ofthe intervention test, a would-be intervenor must show only that impairment of its substantial legal interest is possible if intervention is denied. This burden is minimal."' Grutter, 188 F.3d at 399 (quoting Miller, 103 F.3d at 1247). "'Failure to meet [any] one of the [four] criteria will require that the motion to intervene [as of right] be denied."' Stupak-Thrall v. Glickman, 226 F.3d 467, 471 (6th Cir. 2000) (quoting Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)) (final alteration added). See also Coalition to Defend Affirmative Action v. Granholm, 501 F.3d 775, 780 (6th Cir. 2007) (concluding that because none of the proposed intervenors demonstrated a
9

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 10 of 27 Pg ID 786
substantial legal interest in the litigation, the court "need not address the remaining factors") (citing Grubbs, 870 F.2d at 345). "[A]n intervenor need not have the same standing necessary to initiate a lawsuit," and "[t]he inquiry into the substantiality of the claimed interest is necessarily fact-specific." Miller, 103 F.3d at 1245.
Plaintiffs do not challenge the timeliness of the Individual Movants' Motion to Intervene. Nor could they as Plaintiffs concur in the intervention of St. Vincent as a Defendant and the Individual Movants filed a joint motion with St. Vincent, which was filed within three days of the filing of State Defendants' motion to dismiss. Plaintiffs argue, however, that the Individual Movants do not have a "substantial legal interest" in this case that they will be unable to protect in the absence of intervention and further argue that whatever interest the Individual Movants do have will be adequately protected by St. Vincent's participation as a party to the case, "assuming this Court grants St. Vincent's unopposed Motion to Intervene." The Court did grant St. Vincent's Motion to Intervene on March 5, 2018. (ECF No. 31.)
The Individual Movants Chad and Melissa Buck submit that if St. Vincent is forced to close its foster and adoption programs, which St. Vincent claims will occur if Plaintiffs obtain the relief they seek in this action, the Bucks will lose critical services that are currently provided to them by St. Vincent and may lose the ability to adopt biological siblings oftheir present adoptive children. Shamber Flore submits
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2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 11 of 27 Pg ID 787
that she will lose the opportunity to volunteer at St. Vincent and do the important work of mentoring children in a faith-based setting who, like herself, come from broken and abusive backgrounds.
1. The Nature of the Individual Movants' Alleged Substantial Legal Interest and the Possible Impairment of That Interest Should Intervention be Denied
Timeliness is not an issue in this instance and the parties spend the bulk oftheir briefing attempting to establish whether or not the Individual Movants have a substantial legal interest in this litigation and whether any such interest is likely to be impaired in the absence ofintervention. The Bucks and Ms. Flore rely principally on Grutter, supra, in which the Sixth Circuit addressed the nature of the interests of a group of students and a coalition, both of whom separately sought to intervene in a lawsuit challenging the University ofMichigan's race-conscious admissions program. The named plaintiffs in the action were white students, one male and one female, who were challenging the constitutionality of the University's affirmative action/raceconscious admissions program. The Sixth Circuit determined that two separate groups of proposed intervenors, a group of minority undergraduate students who intended to apply to law school and a pro-affirmative action coalition, had a direct, substantial, and compelling interest in maintaining the use of race as a factor in the University's admission program to enhance their chances ofgaining admission to the
11

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University. Although neither group had a legal right at stake in the litigation that was

protected by legislation or a judicial decree, the Sixth Circuit found that their interest

in preserving access for minorities to educational opportunities and preventing a

decline in minority enrollment satisfied the Rule 24(a) substantial legal interest test:

The [] district court's opinion relies heavily on the premise that the

proposed intervenors do not have a significant legal interest unless they

have a "legally enforceable right to have the existing admissions policy

construed." We conclude that this interpretation results from a

misreading of this circuit's approach to the issue. As noted earlier, we

have repeatedly "cited with approval decisions of other courts

'reject[ing] the notion that Rule 24(a)(2) requires a specific legal or

equitable interest."' Miller, 103 F.3d at 1245.

*

*

*

The case law of this circuit does not limit the finding of a substantial

interest to cases involving the legislative context, any more than it limits

such a finding to cases involving a consent decree. Neither a legislative

context nor the existence ofa consent decree is dispositive as to whether

proposed intervenors have shown that they have a significant interest in

the subject matter of the underlying case. We find that the interest

implicated in the case now before us is even more direct, substantial,

and compelling than the general interest of an organization in

vindicating legislation that it had previously supported. This case is, if

anything, a significantly stronger case for intervention than Miller and

many of the cases on which Miller relied.

Even if it could be said that the question raised is a close one, "close cases should be resolved in favor of recognizing an interest under Rule 24(a)." Miller, 103 F.3d at 1247. The proposed intervenors have enunciated a specific interest in the subject matter of this case, namely their interest in gaining admission to the University, which is considerably more direct and substantial than the interest of the Chamber of Commerce in Miller-a much more general interest. We therefore hold that the district court erred in [] in failing to rule that the

12

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proposed intervenors have established that they have a substantial legal interest in the subject matter of this case. Grutter, 188 F.3d at 398-99. The Sixth Circuit in Grutter also quickly disposed of the impairment issue, finding that even a "diminished likelihood' ofacceptance at the University satisfied the minimal impairment requirement. !d. at 400. Here, the Bucks and Ms. Flore argue, a ruling in favor of the Plaintiffs that likely will result in the closure of St. Vincent makes it all but certain that the Bucks and Ms. Flore will no longer be able to receive services from, or provide their volunteer services to, their faith-based agency of choice, St. Vincent. (ECF No. 24, Reply at 3, PgiD 554.) In response, Plaintiffs rely onBlount-Hillv. Bd. ofEduc. ofOhio, 195 F. App'x 482 (6th Cir. 2006) and United States v. Tennessee, 260 F.3d 587 (6th Cir. 2001), for the proposition that parties merely claiming to benefit as third parties to a contract with the State that is challenged on constitutional or statutory grounds do not have an interest that satisfies Rule 24(a)'s "substantial legal interest" requirement. In Blount-Hill, a group of education association members and parents of school-aged children in Ohio filed an action alleging that certain funding provisions of a state statute violated both the state and federal constitutions. 195 F. App'x at 483-84. White Hat Management ("White Hat"), a management firm that contracts with community schools in Ohio to provide services to aid in the schools' operations,
13

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sought to intervene in the action. The Sixth Circuit, relying on United States v.

Tennessee, supra, found that because White Hat was not a party to any contract that

was challenged in the action and was not directly targeted by the plaintiffs'

complaint, and sought only to preserve its economic interest in continuing to contract

with the community schools, it did not have a "substantial legal interest" sufficient

to satisfy Rule 24(a):

White Hat's primary motivation for seeking intervention is concededly

economic: because "[s]tate funds are the sole source of funding for

community schools ... [i]f[s]tate funds are taken away from community

schools, they will be forced to close." Nevertheless, White Hat contends

that it also has an interest in fulfilling its "mission"-to provide an

alternative education option for Ohio students.

*

*

*

White Hat alleges that it is motivated by both economic interests and for

reasons relating to the preservation of this educational alternative.

Nevertheless ... White Hat's primary interest is economic. It is not a

party to any challenged contract nor is it directly targeted by plaintiffs'

complaint. Instead, White Hat seeks to preserve the constitutionality of

the community school's funding structure so that it might continue to

contract with community schools. Similar to [the proposed intervenor in

Tennessee], White Hat's "claimed interest does not concern the

constitutional and statutory violations alleged in the litigation," but

rather "an interest in the economic component." Tennessee, 260 F.3d at

596. We conclude that this interest is insufficient to comprise a

substantial legal interest for purposes of Rule 24(a) intervention. Like

the proposed intervener in Tennessee, White Hat "can protect its

economic interests in contract negotiations with the State by lobbying

the legislative and executive branches for favorable funding

arrangements...." Jd. at 596-97.

Blount-Hill, 195 F. App 'x at 486. Plaintiffs submit that, like the proposed intervenors

14

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 15 of 27 Pg ID 791
in Blount-Hill and Tennessee, the Bucks and Ms. Flore are not parties to the child placement agency contracts at issue in the litigation, nor are they targeted by the Plaintiffs' Complaint. Rather, Plaintiffs argue, the Bucks and Ms. Flore "merely 'seek[] to preserve the constitutionality of the [State's challenged practice] so that [they] might continue to'" get services or volunteer through St. Vincent." (ECF No. 21, Pis.' Response at 10, PgiD 539) (quoting Blount-Hill, 195 F. App'x at 486).
The Individual Movants reply that the Sixth Circuit has expressly "rejected the notion that Rule 24(a)(2) requires a specific legal or equitable interest," Grutter, 188 F.3d at 399, and has frequently held that no legal or contractual relationship is required to establish a substantial legal interest. (ECF No. 24, Reply at 4 n. 2, PgiD 555) (citing Grutter, 188 F.3d at 398 (intervention for prospective student with no contractual or legal relationship to University or state) and Miller, 103 F.3d at 1247 (allowing Chamber ofCommerce to intervene in dispute over campaign finance laws where Chamber had no contractual or legal relationship with original parties to the lawsuit)). The Bucks submit that much more is at stake for them than economic interests in the outcome of this litigation- they point to the potential that they will likely lose the opportunity to "work with trusted social workers and adopt a biological sibling of their children." (Reply at 5, PgiD 556.) And Ms. Flore likewise submits that what is at stake for her goes beyond economics - she will lose the opportunity
15

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 16 of 27 Pg ID 792
to do the important work of mentoring others in the St. Vincent system. In determining whether to permit intervention, the court "must accept as true
the non-conclusory allegations ofthe motion." Horrigan v. Thompson, No. 96-4138, 145 F.3d 1331 at *2 (6th Cir. 1998) (Table Case) (quoting Lake Investors Dev. Group v. Egidi Dev. Group, 715 F.2d 1256, 1258 (7th Cir. 1983)). See also Westvue NPL Trust v. Kattula, No. 16-cv-12813, 2016 WL 6138616, at* 1 (E.D. Mich. Oct. 21, 20 16) ("[W]hen determining whether intervention should be allowed, the court 'must accept as true the non-conclusory allegations of the motion."') (quoting Lake Investors and citing Horrigan). St. Vincent and the Individual Movants submit that if Plaintiff's lawsuit is successful, St. Vincent will be forced to close its foster and adoption programs. St. Vincent will no longer be able to facilitate support groups or help place vulnerable children with families who have been relying on St. Vincent and working with St. Vincent stafffor years. The Individual Movants submit that the interests of people like the Bucks and Shamber Flore, the individuals who actually benefit from the programs that St. Vincent offers, who regularly attend support groups and rely heavily on the services of their St. Vincent adoption workers with whom they have established relationships, and who have important mentoring relationships with the vulnerable children at St. Vincent, indeed have a substantial interest in the outcome ofthis case. And, according to the Individual Movants, given
16

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 17 of 27 Pg ID 793
the small window of time (one hour1) that an agency has to place a child once they receive a referral for placement, there is a very real possibility that people like the Bucks, who have already adopted two sibling foster children, would miss the opportunity to adopt another sibling ofthose adopted children ifsuch an opportunity were to present itself- it would be unlikely that another agency unfamiliar with the Buck family would be able to facilitate that placement in the same manner that St. Vincent, who is intimately familiar with the Buck's background, would. The Individual Movants submit that the Bucks would not be on the prior case records of a different agency but they would be on the minds ofthe St. Vincent caseworker who knows their family situation and would know to immediately contact them, and therefore there is a likelihood that they would miss the opportunity to adopt another sibling. (ECF No. 33, Transcript of March 7, 2018 Hearing 11 :7-14:4.) The Bucks have demonstrated, at least for purposes of the Court's consideration of a motion under Rule 24, that they have a substantial interest in continuing to work with the individuals at St. Vincent who have a deep institutional knowledge of their family situation. The Bucks also have a substantial interest in continuing to receive the
2 Under the standard foster care contract, "[i]f DHS makes a referral to a child placing agency, the child placing agency must accept or decline the referral immediately, within one hour, of receipt of the referral." (ECF No. 16, Mot. Intervene Ex. 2, St. Vincent/DRS Contract at 4, PgiD 148.)
17

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 18 of 27 Pg ID 794
services of St. Vincent's support groups, which they attend regularly, and which the Individual Movants submit will likely go unfunded and cease to operate should Plaintiffs prevail in this action. (Buck DecI.~~ 6-7.) The court must accept these nonconclusory allegations as true for purposes ofanalyzing the motion to intervene, and accepting them, the Court finds that the Bucks and Ms. Flore have demonstrated a substantial interest in this litigation that may be impacted by the outcome ofthis case. The Individual Movants submit that the institutional knowledge possessed by St. Vincent about the Bucks and other families with whom St. Vincent has been working for years is a significant interest that the Individual Movants have a deep stake in protecting. (3/7/18 Hr'g Tr. 14:15-15:24.)
Plaintiffs submit that the Bucks and Ms. Flore are not harmed or favored by St. Vincent's policy of refusing to evaluate and refer same-sex couples for foster and adoptive purposes, and therefore they have no interest in the constitutional violations at the heart of this case. As long as St. Vincent stays in business, Plaintiffs submit, the Individual Movants will have their interests satisfied. The Individual Movants submit that while it may be true that St. Vincent and the Individual Movants share an interest in St. Vincent's continued viability, the Individual Movants do bring perspectives to the analysis that St. Vincent might not be in the best position to convey, and they suffer distinct harms that St. Vincent does not share. Thus, the
18

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 19 of 27 Pg ID 795
Individual Movants submit, though they may share to some extent the same substantial legal interest, the potential for impairment ofthat interest may be greater ifthe Individual Movants are denied a significant voice in these proceedings. (3/7/18
Hr'g Tr. 23:1-24:3.) This case is not just like Blount-Hill and United States v. Tennessee, discussed supra, in which the parties seeking to intervene could
demonstrate only a third-party beneficial economic interest in the case. Here, while the Individual Movants may face a pecuniary loss, much more is a stake for them, they submit, than just money. (3/7/18 Hr'gTr. 34:7-13.) Accordingly, the Court finds that the Individual Movants satisfy the second and third prongs ofthe intervention as of right test.
2. The Adequacy of Representation of These Interests Absent Intervention of the Individual Movants
St. Vincent and the Individual Movants filed a joint motion to intervene in this action. The Individual Movants insist that Plaintiffs offer no precedent for "carving up" a joint motion to intervene and then comparing the adequacy of representation of the joint movants' interests to one another, rather than comparing the representational adequacy of those interests to the existing parties to the litigation. (3/7/18 Hr'g Tr. 20:3-18.) The Court agrees and also has been unable to locate persuasive authority discussingjust this situation. However, there is authority for the
19

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 20 of 27 Pg ID 796
proposition that intervenors can be compared to one another for purposes ofdeciding the adequacy of representation issue. Coaltion to Defend Affirmative Action v. Granholm, 240 F.R.D. 368 (E.D. Mich. 2006), aff'd 501 F.3d 775 (6th Cir. 2006), involved just such a situation. Coalition to Defend involved a challenge to the validity of an amendment to the Michigan state constitution that barred the use of race, sex, color, ethnicity, or national origin to promote diversity in public hiring or education. 240 F.R.D. at 371. The Michigan Attorney General sought to intervene as a defendant in the matter, and the district court granted the motion, which was either consented to or unopposed by the original parties. /d. at 371. On the same day that the court granted the Attorney General's motion to intervene, two other groups sought to intervene and several days later another group and an individual sought to intervene. /d. In the process of deciding, for various reasons, to deny all but the individual's motion to intervene, the district court expressly considered that the Attorney General (who sought intervention at the same time as several other proposed intervenors) would adequately represent the interests of many ofthe other proposed intervenors:
The main argument by the proposed intervening defendants on the adequacy of representation is that the original parties to the lawsuit all had been opposed to the ballot proposal before the election. That argument certainly had some force before the Michigan Attorney General was allowed to intervene in the case.... Since the interests of
20

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 21 of 27 Pg ID 797
proposed intervenors the American Civil Rights Foundation, the Michigan Civil Rights Initiative Committee, and Toward a Fair Michigan are precisely aligned with those of the Michigan Attorney General, and because there is little likelihood that their participation would shed any new light on the issues presented, they have not shown that the present parties, as they are now aligned, would be inadequate to advance their interests. 240 F.R.D. at 376. The Individual Movants attempt to distinguish Coalition to Defend because in that case the attorney general had moved separately to intervene and had been granted the right to intervene before the two interest groups and the individual filed their motion to intervene. (3/7/18 Hr'g Tr. 20:3-21 :2.) While this is a distinguishing factor, it is also true that the motions to intervene in Coalition to Defend were filed just days apart- but as a technical matter the Individual Movants are correct. In this case, at the time the joint motion to intervene was filed, the only comparator for purposes of analyzing the adequacy of representation was the State. And Plaintiffs have conceded, by concurring in St. Vincent's intervention, that the State cannot adequately represent St. Vincent's interests. In opposing the intervention of the Individual Movants, Plaintiffs argue that the interests of St. Vincent and the Individual Movants are perfectly aligned. The Individual Movants submit that because Plaintiffs have already conceded that the State Defendants cannot adequately represent the interests of St. Vincent, and argue further that the interests of St.
21

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 22 of 27 Pg ID 798
Vincent and the Individual Movants are perfectly aligned, they cannot argue now that the State adequately represents the interests of the Individual Movants. In the absence ofany authority brought to light by the Plaintiffs, or unearthed by this Court, in which a joint motion to intervene has been disaggregated for purposes ofthe Rule 24 analysis, the Court finds that the Individual Movants have the better argument and that they, like St. Vincent, have demonstrated that the "existing parties" to the litigation at the time they filed their motion to intervene could not adequately represent their interests. In addition, unlike the proposed intervenors who were denied intervention in Coalition to Defend, the Individual Movants have demonstrated that "their participation would shed [] new light on the issues presented
" 240 F.R.D. at 376. Even if the Individual Movants were required to establish a lack of adequacy
of representation of their interests by St. Vincent, they submit that they have articulated a sufficient independent basis- St. Vincent faces institutional constraints with respect to evidence and argument that the Individual Movants do not and that the harm suffered by the Individual Movants is much more personal in nature, and distinct in some important ways from, the harm to St. Vincent. (3/7/18 Hr'g Tr. 23:124:3.) While their interests are admittedly related, the Individual Movants argue, they are also distinct and as parties, the Individual Movants improve their chances of
22

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 23 of 27 Pg ID 799
introducing impact evidence they deem important to their unique situations. (3/7/18 Hr'g Tr. 24:14-25:11.) The Individual Movants submit that the Plaintiffs have not conceded the relevance of any evidence that the Individual Movants would seek to introduce that would relate specifically to the distinct harm faced by the Individual Movants in the event that the Plaintiffs prevail in this case. (3/7/18 Hr'g Tr. 24:1420, 37: 1-13.) While the Plaintiffs represented at the hearing on the motion to intervene that they will not object to any evidence "that the Court deems relevant," they stopped short of conceding the relevance of any impact evidence that the Individual Movants may wish to submit. (3/7/18 Hr'g Tr. 28:6-13.)
The Sixth Circuit established in Grutter "that the proposed intervenors' burden in showing inadequacy is 'minimal."' Gruffer, 188 F.3d at 400 (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n. 10 (1972)). "The proposed intervenors need only show that there is a potential for inadequate representation." !d. (alteration in original). Even if the Individual Movants were required to establish inadequacy of representation vis-a-vis St. Vincent rather than the State, they have met that minimal burden here.
The Court concludes that the Individual Movants have shown that they have a substantial legal interest in the subject matter of this case, that this interest will be impaired ifthe Individual Movants are denied intervention, and that neither the State
23

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 24 of 27 Pg ID 800
nor St. Vincent can fully and adequately represent their unique perspective and interest in these proceedings. Accordingly, the Individual Movants are entitled to intervene as of right.
B. Permissive Intervention Even ifthe Court were to conclude that the Individual Movants failed to satisfy the requirements for intervention as of right, the Court would exercise its discretion to permit them to intervene under Fed. R. Civ. P. 24(b), which provides that "[o]n timely motion, the court may permit anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B). Whether to grant permissive intervention rests within the sound discretion of the court, but "[i]n exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3). "So long as the motion for intervention is timely and there is at least one common question of law or fact, the balancing of undue delay, prejudice to the original parties, and any other relevant factors is reviewed for an abuse of discretion." Miller, 103 F.3d at 1248. The Individual Movants direct the Court's attention to the opening paragraph ofPlaintiffs' Complaint, which alleges that the practice ofpermitting state-contracted child placing agencies to use religious criteria to screen prospective foster and
24

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 25 of 27 Pg ID 801
adoptive families "harms vulnerable children by denying them access to loving families that they desperately need ...." (Compl. ~ 1; 3/7/18 Hr'g Tr. 8:1-21.) Likewise, the Individual Movants point out, Paragraph 11 of the Complaint alleges that the State's policy challenged in this action "fails to take adequate account ofthe burdens imposed on children" whom the State hires these agencies to serve. (Compl. ~ 11; 3/7/18 Hr'g Tr. 26:16-27:4.) And the Individual Movants point to paragraph 86 of the Complaint alleging that "no government interest is served by denying children access to potentially qualified families based on a religious exclusion." (Compl. ~ 86, 3/7/18 Hr'g Tr. 27:11-14.) The Individual Movants suggest that the common question of law and fact that they share with this case is in demonstrating from their perspective the impact and burden on the children ofthe State ifPlaintiffs obtain the reliefthey seek. (3/7/18 Hr'g Tr. 8:1-21,27:15-28: 1.) Ifthe Court is being asked to decide an issue based in part on an impact of its ruling on the welfare ofthe State's foster children and their families, which the Individual Movants submit the Plaintiffs have placed in issue in their Complaint, the Individual Movants urge the Court to allow those children and families to have a voice in these proceedings.
Like the proposed intervenors in American Beverage Assoc. v. Snyder, No. 11cv-195, 2011 WL 13128662, at *5 (W.D. Mich. April 26, 2011), the Individual Movants assert that they will be "adversely impacted by a declaration of
25

2:17-cv-13080-PDB-EAS Doc # 34 Filed 03/22/18 Pg 26 of 27 Pg ID 802
unconstitutionality" in this case, and thus "share a common question with the main action." And, as in American Beverage, the Individual Movants "bring[] to this litigation a unique perspective" because of the nature of the individual and very personal harm that they will suffer if Plaintiffs prevail in this case.
Finally, as this case is in its very early stages and the Individual Movants, who jointly sought intervention along with St. Vincent and are represented by the same counsel as St. Vincent, are now being granted the right to intervene just two weeks after St. Vincent intervened with no opposition from any party, the Court finds that the Individual Movants intervention will not result in undue prejudice or delay. III. CONCLUSION
Forthe foregoing reasons, the Court GRANTS the Individual Movants' motion to intervene (ECF No. 18). Having granted permission to each of the Proposed Intervening Defendants to intervene in this action, the Court accepts the DefendantIntervenors' Proposed Motion to Dismiss (ECF No. 19), which will be deemed filed on today's date. Plaintiffs shall respond to the Defendant-Intervenors' Motion to Dismiss on or before April12, 2018. Intervening Defendants shall reply on or before April 26, 2018.
The Court will hold a hearing on May 10,2018 at 2:30p.m. on both the State Defendants' (ECF No. 16) and the Intervening Defendants' motions to dismiss. All
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parties are ordered to fo llow the Eastern District ofMichigan Local Rules with regard

to page length and formatting of briefs.

IT IS SO ORDERED.

Paul D. Borman United States District Judge

Dated:

27

 
 2:17-cv-13080-PDB-EAS Doc # 26-1 Filed 01/30/18 Pg 1 of 37 Pg ID 576
EXHIBIT A

2:17-cv-13080-PDB-EAS Doc # 26-1 Filed 01/30/18 Pg 2 of 37 Pg ID 577

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; REBECCA BUSK-SUTTON; and JENNIFER LUDOLPH,
Plaintiffs,
v.
NICK LYON, in his official capacity as the Director of the Michigan department of Health and Human Services; and HERMAN MCCALL, in his official capacity as the Executive Director of the Michigan Children’s Services Agency,
Defendants.

No. 2:17-cv-13080-PDB-EAS
Hon. Paul D. Borman Mag. Elizabeth A. Stafford
AMICUS CURIAE BRIEF OF 53 MICHIGAN STATE LEGISLATORS IN SUPPORT OF DEFENDANTS’ AND INTERVENORS’ MOTIONS TO DISMISS

Timothy Denney (P39990) Rickard, Denney, Garno & Leichliter 110 N. Saginaw Street, Ste. 1 Lapeer, MI 48446 (810) 664-0750 Tdenney@twdpclaw.com
*Pending admission

Kristen K. Waggoner (AZ Bar. No. 032382)* David A. Cortman (AZ Bar No. 029490) Jeremy D. Tedesco (AZ Bar No. 023497) Jonathan A. Scruggs (AZ Bar No. 030505)* Katherine L. Anderson (AZ Bar No. 033104)* ALLIANCE DEFENDING FREEDOM 15100 N. 90th Street Scottsdale, AZ 85260 Telephone: (480) 444-0020 Fax: (480) 444-0028 kwaggoner@adflegal.org dcortman@adflegal.org jtedesco@adflegal.org jscruggs@adflegal.org kanderson@adflegal.org

2:17-cv-13080-PDB-EAS Doc # 26-1 Filed 01/30/18 Pg 3 of 37 Pg ID 578
TABLE OF CONTENTS TABLE OF AUTHORITIES ................................................................................... iii CONCISE STATEMENT OF ISSUES PRESENTED ......................................... viii CONTROLLING OR MOST APPROPRIATE AUTHORITY .............................. ix INTEREST OF AMICUS CURIAE ..........................................................................1 INTRODUCTION .....................................................................................................1 ARGUMENT .............................................................................................................2 I. P.A. 53 seeks to maximize the welfare of children. ........................................2
Faith-based agencies have played key roles in the foster and adoption area...................................................................................2 Faith-based agencies were forced to close in other states.....................4 Michigan children flourish with a diversity of options.........................6 After considering legislation passed in other jurisdictions, Michigan enacted its own law...............................................................8 II. The Complaint should be dismissed for lack of standing. ............................10 No injury in fact. .................................................................................10 No causal connection...........................................................................14 No redressability..................................................................................15 III. The Complaint should be dismissed for failure to state an Establishment Clause or Equal Protection claim. .........................................16 Plaintiffs do not challenge state action................................................16 P.A. 53 complies with the Establishment Clause because it promotes the secular purpose of protecting children. .........................18 P.A. 53 complies with the Equal Protection Clause because it satisfies rational basis review...........................................................21
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This Court should avoid a ruling that clashes with the federal or state Free Exercise Clauses.................................................23 CONCLUSION ........................................................................................................24
ii

2:17-cv-13080-PDB-EAS Doc # 26-1 Filed 01/30/18 Pg 5 of 37 Pg ID 580
TABLE OF AUTHORITIES
Cases
ACLU v. Grayson County, 591 F.3d 837 (6th Cir. 2010) .........................................................................20
ACLU-New Jersey v. Township of Wall, 246 F.3d 258 (3d Cir. 2001) ....................................................................12, 13
Adams v. Vandemark, 855 F.2d 312 (6th Cir. 1988) .........................................................................17
Agostini v. Felton, 521 U.S. 203 (1997).......................................................................................21
Allen v. Wright, 468 U.S. 737 (1984)...........................................................................11, 12, 15
Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017) .........................................................................12
City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985).......................................................................................21
Clapper v. Amnesty International USA, 568 U.S. 398 (2013).......................................................................................12
Collyer v. Darling, 98 F.3d 211 (6th Cir. 1996) ...........................................................................16
Country Mill Farms, LLC v. City of East Lansing, No. 1:17-CV-487, 2017 WL 5514818 (W.D. Mich. Nov. 16, 2017)......23, 24
Crowder v. Conlan, 740 F.2d 447 (6th Cir. 1984) .........................................................................17
E. Brooks Books, Inc. v. Shelby County, 588 F.3d 360 (6th Cir. 2009) .........................................................................22
Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).......................................................................................16
iii

2:17-cv-13080-PDB-EAS Doc # 26-1 Filed 01/30/18 Pg 6 of 37 Pg ID 581
Freedom From Religion Foundation, Inc. v. Nicholson, 536 F.3d 730 (7th Cir. 2008) .........................................................................14
Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007).................................................................................13, 14
Henderson v. Stalder, 287 F.3d 374 (5th Cir. 2002) ...................................................................13, 14
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)...........................................................................13, 14, 15
Michigan v. Doran, 439 U.S. 282 (1978).......................................................................................23
Moore v. Bryant, 853 F.3d 245 (5th Cir. 2017) .........................................................................12
Mt. Elliott Cemetery Association v. City of Troy, 171 F.3d 398 (6th Cir. 1999) .........................................................................22
Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) .........................................................................15
National Family Planning and Reproductive Health Association, Inc. v. Gonzales 468 F.3d 826 (D.C. Cir. 2006).......................................................................15
New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U.S. 645 (1995).......................................................................................24
O’Shea v. Littleton, 414 U.S. 488 (1974).......................................................................................13
Parsons v. United States Department of Justice, 801 F.3d 701 (6th Cir. 2015) .........................................................................10
Rendell-Baker v. Kohn, 457 U.S. 830 (1982).......................................................................................17
Sherman v. Illinois, 682 F.3d 643 (7th Cir. 2012) .........................................................................14
iv

2:17-cv-13080-PDB-EAS Doc # 26-1 Filed 01/30/18 Pg 7 of 37 Pg ID 582
Smith v. Jefferson County Board of School Commissioners, 788 F.3d 580 (6th Cir. 2015) ...................................................................18, 19
Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998).........................................................................................15
Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).....................................................................................19, 20
Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)...................................................................................23
Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982).......................................................................................11
Wilder v. Bernstein, 848 F.2d 1338 (2d Cir. 1988) ........................................................................21
Wolotsky v. Huhn, 960 F.2d 1331 (6th Cir. 1992) .......................................................................17
Statutes Mich. Comp. Laws § 722.124e............................................................................9, 14 Mich. Comp. Laws § 722.124e(1)(a)...................................................................1, 19 Mich. Comp. Laws § 722.124e(1)(c)...................................................................8, 19 Mich. Comp. Laws § 722.124e(1)(d) ..........................................................19, 22, 23 Mich. Comp. Laws § 722.124e(1)(e).................................................................19, 23 Mich. Comp. Laws § 722.124e(1)(f) .........................................................................3 Mich. Comp. Laws §§ 722.124e(2), (3) ....................................................................9 Mich. Comp. Laws § 722.124e(4) .......................................................................9, 10 Mich. Comp. Laws § 722.124e(7)(b) ........................................................................9
v

2:17-cv-13080-PDB-EAS Doc # 26-1 Filed 01/30/18 Pg 8 of 37 Pg ID 583
Mich. Comp. Laws § 722.124f ..................................................................................9
Mich. Comp. Laws § 722.124f(1)............................................................................10
N.D. CENT. CODE §§ 50-12-03, 50-12-07.1 (2003) ...................................................8
VA. CODE ANN. § 63.2-1709.3 (2012) .......................................................................8
42 U.S.C. § 300a-7 et seq ........................................................................................21
Other Authorities
Bethany Christian Services, Our History, https://www.bethany.org/aboutus/our-history. ..................................................................................................3
Cicero A. Estrella, Catholic Charities scaling back its role in adoption services, SFGATE (August 3, 2006), http://www.sfgate.com/bayarea/ article/SAN-FRANCISCO-Catholic-Charities-scaling-back2515267.php ....................................................................................................5
Colleen Theresa Rutledge, Caught in the Crossfire: How Catholic Charities of Boston was Victim to the Clash Between Gay Rights and Religious Freedom, 15 DUKE J. GENDER L. & POL’Y 297 (2008) ...................................4
Hearing on H.B. 4188-4190 Before the H. Comm. on Families, Children, and Seniors, 2015 Sess. (Mich. 02/18/15) (http://www.house. mi.gov/SharedVideo/PlayVideoArchive.html ?video=FAMI021815.mp4 .....................................................................................3, 7, 18, 19
Hearing on H.B. 4188-4190 Before the House, 2015 Sess. (Mich. 03/18/15) (http://www.house.mi.gov/Shared Video/PlayVideoArchive.html? video=Session-031815.mp4) .................................................................3, 9, 15
Hearing on H.B. 4188-4190 Before the Sen. Comm. on Families, Children, and Seniors, 2015 Sess. (Mich. 04/22/15) (Families-Seniors-Human Serv-04-22-2015_0303PM _42_38.mp3)..................................................3, 16
Joseph R. Ganahl, Fostering Free Exercise, 88 NOTRE DAME L. REV. 457, (2012) ............................................................................................................. 21
vi

2:17-cv-13080-PDB-EAS Doc # 26-1 Filed 01/30/18 Pg 9 of 37 Pg ID 584
Julia Duin, Catholics end D.C. foster-care program, THE WASHINGTON TIMES (February 18, 2010), https://www.washingtontimes.com/ news/2010/feb/18/dc-gay-marriage-law-archdiocese-end-foster-care/ ........... 5
Laurie Goodstein, Bishops Say Rules on Gay Parents Limit Freedom of Religion, NEW YORK TIMES (December 28, 2011), http://www.ny times.com/2011/12/29/us/for-bishops-a-battle-over-whose-rightsprevail.html ......................................................................................................6
Maggie Gallagher, Banned in Boston, THE WEEKLY STANDARD (May 15, 2006), http://www.weeklystandard.com/banned-inboston/article/13329 ........................................................................................4
Manya A. Brachear, Last faith agency opposed to civil union adoptions out of foster care, CHICAGO TRIBUNE (November 16, 2011), http://articles.chicagotribune.com/2011-11-16/news/ct-metevangelical-foster-care-gone-20111116_1_ken-withrow-faith-agencycatholic-charities-agencies...........................................................................5, 6
Mich. Dept. of Health & Hum. Serv., Foster Care, http://www.michigan. gov/mdhhs/0,5885,7-339-73971_7117---,00.html ..........................................6
New Michigan law lets agencies cite faith in handling adoptions, THE COLUMBUS DISPATCH (June 12, 2015), http://www.dispatch.com/ article/20150612/NEWS/ 306129600 .............................................................8
Robin F. Wilson, A Matter of Conviction: Moral Clashes over Same-Sex Adoption, 22 BYU J. PUB. L. 475 (2008)......................................................18
The Kids Count Data Center: A Project of The Anne E. Casey Foundation: Children in foster care by race and Hispanic origin (Feb. 2017), http://datacenter.kidscount.org/data/tables/ 6246-children-in-fostercare-by-race-and-hispanic-origin#detailed/2/24/false/573/ 2638,2601,2600,2598,2603,2597,2602, 1353/12992,12993...........................7
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CONCISE STATEMENT OF ISSUES PRESENTED1 1. Is mere disagreement with the law sufficient to confer standing for Plaintiffs
to challenge a statute under the Equal Protection Clause or the Establishment Clause? 2. Do Plaintiffs have standing to challenge a statute under the Equal Protection Clause or Establishment Clause if Plaintiffs allege the statute inflicts only stigmatic harm? 3. Do Plaintiffs have standing when the alleged injuries were caused by their own actions? 4. Do allegations of a past injury establish standing to obtain declaratory and injunctive relief? 5. Have Plaintiffs stated a claim under the Establishment Clause or Equal Protection Clause when they do not challenge state action? 6. Does Plaintiffs’ requested relief create an avoidable conflict with the Michigan Free Exercise Clause, which provides more protection than the Federal Free Exercise Clause?
1 State Legislators incorporate by reference the first, second and fourth issues presented by Defendants as well as the third and fifth issues presented by the proposed Defendant-Intervenors.
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CONTROLLING OR MOST APPROPRIATE AUTHORITY Allen v. Wright, 468 U.S. 737 (1984); Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013); Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992); Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991); Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Michigan v. Doran, 439 U.S. 282 (1978).
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INTEREST OF AMICUS CURIAE Amici are a collection of 53 Michigan state legislators.2 The amici have an interest in ensuring that 2015 P.A. 53 is interpreted properly. A full list of these legislators appears in Appendix 1 to this brief.
INTRODUCTION “When it is necessary for a child in this state to be placed with an adoptive or foster family, placing the child in a safe, loving, and supportive home is a paramount goal of this state.” Mich. Comp. Laws § 722.124e(1)(a). To achieve that goal, Michigan passed 2015 P.A. 53 which preserves the many child-placement agencies with which Michigan has worked with for decades and allows the religiouslyaffiliated ones to operate in accordance with their beliefs and constitutional rights. This legislation created a win-win. Michigan can place more children in adoption and foster homes; more child placement agencies can achieve their mission of serving children; more children receive the love and care they deserve. But two years after P.A. 53 passed, Plaintiffs filed this lawsuit, not because P.A. 53 hinders them from adopting or fostering children—they can currently seek to do so—but because they object on Establishment and Equal Protections grounds to how some religious placing agencies select families for foster and adoption care. Federal courts, however, are not vehicles to vindicate ideological objections of
2 Amici include 52 current legislators and 1 former state legislator.
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concerned bystanders. As those who passed and support P.A. 53, Amici write to explain the purpose of this law and to urge this Court to dismiss this lawsuit for three reasons.
First, Plaintiffs have not alleged a case or controversy. Neither ideological disagreement with the law nor self-inflicted harm for a non-existent injury can confer Article III standing. Second, Plaintiffs’ constitutional claims, which allege no state action, lack merit. Michigan’s historical practice and P.A. 53’s careful crafting comply with the Establishment Clause and avoid Establishment concerns by minimizing state interference with the internal affairs of faith-based organizations. P.A. 53’s implementation also satisfies the rational basis review required for equal protection. Third, Plaintiffs’ requested relief would violate the free exercise rights of children and child-placing agencies in Michigan. This Court should avoid a ruling that creates unnecessary constitutional conflict. The better course is to dismiss this lawsuit and to continue to allow Michigan’s broad array of child-placement agencies to care for the greatest number of children possible.
ARGUMENT I. P.A. 53 seeks to maximize the welfare of children.
Faith-based agencies have played key roles in the foster and adoption area. Well before the Michigan Department of Health and Human Services (“DHHS”) was formed in 1965, faith-based organizations were providing numerous
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services to the state’s poor and vulnerable.3 These organizations were the primary
providers of child placement services in Michigan. Id. For decades, DHHS has
sought their assistance to tackle many diverse needs. See Mich. Comp. Laws §
722.124e(1)(f) (“Faith-based and non-faith-based child placing agencies have a long
and distinguished history of providing adoption and foster care services in this
state.”).
Today, Michigan has been recognized as a leader for its innovative approach to adoption and its 80% adoption-placement rate.4 According to DHHS, “[t]he
success of Michigan’s program can be attributed to the unique partnership between
public and private agencies responsible for adoption planning and placement of foster children who become permanent wards.”5
3 Hearing on H.B. 4188-4190 Before the H. Comm. on Families, Children, and Seniors, 2015 Sess. (Mich. 02/18/15) [hereinafter 02/18/15 Hearing] (statement of Tom Hickson) (http://www.house.mi.gov/SharedVideo/PlayVideoArchive.html ?video=FAMI-021815.mp4 at 13:10-14:02); 02/18/15 Hearing at 1:12:28-1:12:38 (testimony of William Blacquiere); Bethany Christian Services, Our History, https://www.bethany.org/about-us/our-history (last visited Jan. 15, 2018). 4 Hearing on H.B. 4188-4190 Before the House, 2015 Sess. (Mich. 03/18/15) [hereinafter 03/18/15 Session] (statement of Rep. Andrea LaFontaine) (http://www.house.mi.gov/SharedVideo/PlayVideoArchive.html?video=Session031815.mp4 at 1:05:36-1:05:49). 5 Hearing on H.B. 4188-4190 Before the Sen. Comm. on Families, Children, and Seniors, 2015 Sess. (Mich. 04/22/15) [hereinafter 04/22/15 Hearing] (testimony of Rep. Eric Leutheuser) (Families-Seniors-HumanServ-04-22-2015_0303PM _42_38.mp3 at 1:58-2:09).
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These successful public-private partnerships are not just limited to Michigan. Many faith-based organizations have worked with state agencies across the country to serve children’s best interests. Unfortunately, a lack of religious tolerance and respect for diversity has led some of these associations to come to an abrupt end.
Faith-based agencies were forced to close in other states. In 2006, Catholic Charities of Boston, which had been engaged in the ministry of adoption for well over a century, faced a difficult choice: violate its conscience, or close its doors. Massachusetts interpreted its antidiscrimination law to require Catholic Charities to place children with same-sex couples. Catholic Charities asked the state legislature to change its interpretation, so that it could continue to practice a tenant of its faith; but Massachusetts refused.6 The result was a loss for the children of Boston. Catholic Charities closed its adoption services, leaving a huge gap in the fostering and caring of disadvantaged children in the area. Id. (“It’s a shame because it is certainly going to mean that fewer children from foster care are going to find permanent homes. . . . This is a tragedy for kids.”).7
6 Maggie Gallagher, Banned in Boston, THE WEEKLY STANDARD (May 15, 2006), http://www.weeklystandard.com/banned-in-boston/article/13329. 7 See also Colleen Theresa Rutledge, Caught in the Crossfire: How Catholic Charities of Boston was Victim to the Clash Between Gay Rights and Religious Freedom, 15 DUKE J. GENDER L. & POL’Y 297, 298 (2008) (noting that Catholic Charities was responsible for the placement of one-third of all Boston area private adoptions).
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A few months later, the Archdiocese of San Francisco faced a similar dilemma.8 To avoid violating the tenants of the Catholic faith, Catholic Charities was forced to withdraw from direct placement in San Francisco and was instead limited to helping identify children for adoption. Id.
In 2010, the Archdiocese of Washington, D.C., which had provided support to children and families for over eighty years through a partnership with the District of Columbia, was forced to drop its foster care and public-adoption program.9 This was due to D.C.’s passage of a law that officials interpreted to require providers of these services to place children with same-sex couples. Id.
In Illinois, faith-based organizations were also shut out. The state did not renew the contracts of religious agencies that refused to sacrifice their religious beliefs, forcing the transfer of hundreds of children and families to other child welfare agencies.10 Evangelical Child and Family Agency’s contract with the Illinois Department of Children and Family Services had been renewed annually for over
8 Cicero A. Estrella, Catholic Charities scaling back its role in adoption services, SFGATE (August 3, 2006), http://www.sfgate.com/bayarea/article/SANFRANCISCO-Catholic-Charities-scaling-back-2515267.php. 9 Julia Duin, Catholics end D.C. foster-care program, THE WASHINGTON TIMES (February 18, 2010), https://www.washingtontimes.com/news/2010/feb/18/dc-gaymarriage-law-archdiocese-end-foster-care/. 10 Manya A. Brachear, Last faith agency opposed to civil union adoptions out of foster care, CHICAGO TRIBUNE (November 16, 2011), http://articles.chicago tribune.com/2011-11-16/news/ct-met-evangelical-foster-care-gone-20111116_1_ ken-withrow-faith-agency-catholic-charities-agencies.
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four decades until it was required to violate their beliefs and place prospective foster care with parents in civil unions. Id. Catholic Charities’ affiliates in Illinois were likewise shutdown, despite also serving in the state’s social service network for over forty years.11 “In the name of tolerance, we’re not being tolerated,” said Bishop Thomas J. Paprocki of the Diocese of Springfield. Id.
The departure of these agencies from providing foster care and adoption services in each of these states left serious holes in the social services landscape. “[F]amilies were disrupted, already transient children were again shuffled around, important services were lost, and state child welfare agencies took on more than they could handle.” Exhibit 1A to Reply in Supp. of Proposed-Intervenors’ Mot. to Intervene, ECF No. 24-1. It also left these jurisdictions more homogenous, devoid of diversity and private choices that had previously existed for decades.
Michigan children flourish with a diversity of options. In Michigan, there are approximately 13,000 children who are in need of foster care and/or adoptive services.12 Those children come from a myriad of diverse
11 Laurie Goodstein, Bishops Say Rules on Gay Parents Limit Freedom of Religion, NEW YORK TIMES (December 28, 2011), http://www.nytimes.com/ 2011/12/29/us/for-bishops-a-battle-over-whose-rights-prevail.html. 12 Mich. Dept. of Health & Hum. Serv., Foster Care, http://www.michigan.gov/mdhhs/0,5885,7-339-73971_7117---,00.html (last visited January 15, 2018).
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backgrounds.13 To fully accommodate these large numbers, a broad spectrum of options is needed.
A variety of adoption services better serves a diverse public than does a homogenous system. That was certainly the case in Boston, San Francisco, the District of Columbia, and Illinois, and for Catholic Charities and the other faithbased institutions before they were forced to shut down their vital work in those respective jurisdictions.
In 2015, Michigan State Legislators considered whether to provide more diverse private options or standardize the private options available to help adopted children and families.14 Recognizing that both “[f]aith-based and non-faith-based child placing agencies have a long and distinguished history of providing adoption and foster care services in [Michigan],” and that “adoption and foster care licensees [] represent a broad spectrum of organizations and groups,” the State Legislature determined that:
13 The Kids Count Data Center: A Project of The Anne E. Casey Foundation, Children in foster care by race and Hispanic origin (Feb. 2017) http://datacenter.kidscount.org/data/tables/ 6246-children-in-foster-care-by-raceand-hispanic-origin#detailed/2/24/false/573/2638,2601,2600,2598,2603,2597, 2602, 1353/12992,12993. 14 02/18/15 Hearing at 1:13:38-1:14:47 (testimony of William Blacquiere); 02/18/15 Hearing at 1:01:44-1:02:02 (statement of Rep. Anthony Forlini); 04/22/15 Hearing at 1:07:03-1:07:14 (testimony of Vicki Schultz) (“Without these bills, agencies such as ours may be asked to perform services which would go against our belief system, ultimately forcing us out of the foster care and adoption services.”).
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Having as many possible qualified adoption and foster parent agencies in this state is a substantial benefit to the children of this state who are in need of these placement services and to all of the citizens of this state because the more qualified agencies taking part in this process, the greater the likelihood that permanent child placement can be achieved. Mich. Comp. Laws § 722.124e(1)(c). Catholic Charities and Bethany Christian Services, the two institutions mentioned in Plaintiffs’ complaint, together facilitate 25-30% of Michigan’s foster care adoptions.15 While there are many other faithbased agencies in the state, the loss of these two alone would greatly lessen the number and diversity of adoption and foster-care options available.
After considering legislation passed in other jurisdictions, Michigan enacted its own law. Michigan was not the first state to confront this issue. In fact, before passage of P.A. 53, North Dakota and Virginia enacted similar legislation. N.D. CENT. CODE §§ 50-12-03, 50-12-07.1 (2003); VA. CODE ANN. § 63.2-1709.3 (2012). Both of their laws accommodated a broad array of private child-placement agencies, allowing them to serve children without violating their religious beliefs about family or marriage. N.D. CENT. CODE §§ 50-12-03, 50-12-07.1 (2003); VA. CODE ANN. § 63.21709.3 (2012). Utilizing this successful legislation as a guide, Michigan determined to pass its own law that would codify its existing practices and allow as many private
15New Michigan law lets agencies cite faith in handling adoptions, THE COLUMBUS DISPATCH (June 12, 2015), http://www.dispatch.com/article/20150612/NEWS/ 306129600.
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agencies as possible to remain open, thereby creating an environment where the largest number of children could find their “forever home.”16
On June 11, 2015, Governor Rick Snyder signed P.A. 53 into law, which was a combination of three House Bills (Nos. 4188, 4189 and 4190) sponsored by lawmakers from both parties during the 2015 Legislative Session. Mich. Comp. Laws §§ 722.124e and 722.124f. Section 124e of the law states that a child placing agency “shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs contained in a written policy, statement of faith, or other document adhered to by the child placing agency,” and the state or local government may not take “adverse action” against the child placing agency for doing so. Mich. Comp. Laws §§ 722.124e(2), (3). Importantly, “‘[s]ervices’ includes any service that a child placing agency provides, except for foster care case management and adoption services provided under a contract with the department.” Mich. Comp. Laws § 722.124e(7)(b) (emphasis added).
The statute further provides that if a child placing agency declines to provide services, the child placing agency shall promptly refer the applicant to another agency that is willing to provide the declined services or promptly refer the applicant to the DHHS’s website that identifies other licensed agencies. Mich. Comp. Laws
16 03/18/15 Hearing at 1:05:54-1:06:22 (testimony of Rep. Andrea LaFontaine).
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§ 722.124e(4). In addition, “[i]f the department makes a referral to a child placing agency for foster care case management or adoption services under a contract with a child placing agency, the child placing agency may decide not to accept the referral if the services would conflict with the child placing agency’s sincerely held religious beliefs contained in a written policy, statement of faith, or other document adhered to by the child placing agency.” Mich. Comp. Laws § 722.124f(1). II. The Complaint should be dismissed for lack of standing.
To bring a federal lawsuit under Article III, Plaintiffs must establish standing. Parsons v. U.S. Dep’t of Justice, 801 F.3d 701, 710 (6th Cir. 2015). That means Plaintiffs must show (1) an “injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) the injury is “traceable to the challenged action of the defendant”; and (3) the injury will be “redressed by a favorable decision.” Id. (quotation marks omitted). Plaintiffs cannot satisfy any of these requirements.
No injury in fact. None of the Plaintiffs allege any legal injury. Although Plaintiffs Dumonts and Busk-Suttons say they are “ready, willing, and able to provide a ‘forever family’ to children in the foster care system” (Compl. ¶ 5, ECF No. 1), they have no right to work with a specific child placing agency. And P.A. 53 does not stop them from fostering or adopting; at any time, they can work with numerous other agencies to
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realize their goal. See Def.-Intervenors’ Mot. to Dismiss 4-5, ECF No. 19. Likewise, P.A. 53 does not stop Plaintiff Ludolph from fostering and adopting either. Nor does the Complaint allege otherwise. Rather, it alleges that some private placing agencies declined to work with some of the Plaintiffs (Compl. ¶¶ 61, 63, 68, ECF No. 1) and that the Plaintiffs as taxpayers have “strong[] oppos[ition]” to P.A. 53. (Compl. ¶ 73, ECF No. 1).
But those are not viable legal injuries. There is no state action in what religious private placement agencies do. And though Plaintiffs may be deeply offended by what these agencies do and believe, the state did not create that purported harm. Certainly, P.A. 53 does not require the private placement agencies to act in a way Plaintiffs find objectionable. At most, Plaintiffs object to the fact that P.A. 53 exists and DHHS allows these agencies to place children the way they always have.
But that objection is an abstract one—mere disagreement with the law— shared by anyone who shares Plaintiffs’ ideology. And mere disagreement does not confer standing. The Supreme Court “has repeatedly held that an asserted right to have the Government act in accordance with law is not sufficient, standing alone, to confer jurisdiction on a federal court.” Allen v. Wright, 468 U.S. 737, 754 (1984) (concluding mere disagreement insufficient for equal protection claim); Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 483 (1982) (same for Establishment Clause claim).
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Nor can Plaintiffs save their lawsuit by re-characterizing their injury as a stigmatic harm created by P.A. 53. In the Equal Protection context, stigmatic harm only confers standing on those “‘who are personally denied equal treatment’” by the government’s “challenged discriminatory conduct[.]” Allen, 468 U.S. 737, 755 (1984). And P.A. 53 does not cause any differential treatment; it allows a broad array of private parties to place children in homes the children so desperately want and need. See Moore v. Bryant, 853 F.3d 245, 249 (5th Cir. 2017) (“Accordingly, to plead stigmatic-injury standing [under equal protection], Plaintiff must plead that he was personally subjected to discriminatory treatment.”). The same holds true in the Establishment Clause context. See Barber v. Bryant, 860 F.3d 345, 353 (5th Cir. 2017) (rejecting stigmatic harm as basis for Establishment Clause claim because “[w]here a statute or government policy is at issue, the policy must have some concrete applicability to the plaintiff.”).
Even more troublesome, some Plaintiffs caused their own alleged injury. For example, Plaintiffs Dumonts and Busk-Suttons went out of their way to seek out religiously-affiliated child placement agencies in the hope of being declined. Def.Intervenors’ Mot. to Dismiss 4-6, ECF No. 19. But self-inflicted injury cannot satisfy the injury-in-fact requirement. See, e.g., Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013) (“[R]espondents cannot manufacture standing merely by inflicting harm on themselves….”); ACLU-NJ v. Twp. of Wall, 246 F.3d 258, 266 (3d Cir.
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2001) (rejecting standing when plaintiffs visited display “in order to describe the display for this litigation”).
And just as problematic, the Dumonts and Busk-Suttons’ past decision to use a religious placement agency cannot establish an injury justifying the only relief they seek—prospective relief to prevent future harm. See Compl., Prayer for Relief, ECF No. 1. “Past exposure to [even] illegal conduct does not in itself show a present case or controversy regarding injunctive relief….” O’Shea v. Littleton, 414 U.S. 488, 495 (1974). Because it is completely speculative whether (or when) Plaintiffs will seek to adopt or foster in the future or whether they will intentionally use or coincidentally stumble on a religious placement agency that cannot place children with same-sex families, Plaintiffs lack standing for prospective relief. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 564 (1992) (concluding that “some day” intentions insufficient to establish imminent injury).
The only future “injury” Plaintiffs can establish is their objection to the existence of P.A. 53. For this reason, Plaintiffs must invoke taxpayer standing as their primary basis for standing. (Compl. ¶ 7, ECF No. 1). But taxpayers generally do not have standing to challenge a law. See Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 599 (2007) (summarizing taxpayer standing). As a rare exception, taxpayer standing exists in the Establishment Clause context only when “‘tax revenues are expended on the disputed practice.’” Henderson v. Stalder,
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287 F.3d 374, 380-81 (5th Cir. 2002). And even then, tax revenues must be specifically approved by the legislature and not “discretionary Executive Branch expenditures.” Hein, 551 U.S. at 608; see also Sherman v. Illinois, 682 F.3d 643, 646 (7th Cir. 2012) (applying this requirement to state taxpayer standing).
But Plaintiffs’ lawsuit fails on both counts. It does not identify any specific legislative provision authorizing funds spent on any practice they object to. At most, DHHS—not the legislature—chooses which private placement agencies to allocate funds to and decides whether that allocation complies with P.A. 53. Mich. Comp. Laws § 722.124e. And DHHS does so in a religiously neutral way, to both religious and non-religious agencies. That type of discretionary executive spending unrelated to the objected to conduct is not subject to state-taxpayer suits. See, e.g., Freedom From Religion Found., Inc. v. Nicholson, 536 F.3d 730, 741 (7th Cir. 2008) (finding no taxpayer standing when Congress “mandated that the VHA provide medical care to veterans and, at least in a broad sense, it has contemplated that the VA generally will provide chaplain services … [because] no specific congressional action mandates, requires or even intimates that chaplains be used in any particular way to accomplish this goal.”) (citation omitted).
No causal connection. Just as Plaintiffs cannot prove injury in fact, they cannot prove any causal connection between their alleged injury and the complained of conduct. See Lujan,
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504 U.S. at 560-61 (requiring injury be “fairly . . . trace[able] to the challenged action of the defendant.”).
In this instance, passage of P.A. 53 and its implementation did nothing to alter the status quo and instead merely codified existing practice.17 Further, the Dumonts and Busk-Suttons complain about the actions of two child placement agencies, neither of which was sued by Plaintiffs. And Plaintiff Ludolph never alleges that she interacted with any Defendant. Therefore, because the links of causation are not “fairly traceable” to Defendants, and include “the independent action of [at least one] third party not before the court,” all of Plaintiffs’ claims must be dismissed for lack of causation. Allen, 468 U.S. at 739, 757 (finding lack of causation because chain of causation “involve[d] numerous third parties”). Id. at 759. National Family Planning and Reproductive Health Ass’n, Inc. v. Gonzales, 468 F.3d 826, 831 (D.C. Cir. 2006) (“[E]ven if self-inflicted harm qualified as an injury it would not be fairly traceable to the defendant’s challenged conduct.”).
No redressability. The last prong, redressability, requires “a likelihood that the requested relief will redress the alleged injury.” Nader v. Blackwell, 545 F.3d 459, 471 (6th Cir. 2008) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998)).
17 03/18/15 Hearing at 1:05:54-1:06:22 (statement of Rep. Andrea LaFontaine).
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Plaintiffs request that Defendants be enjoined from contracting with child placement agencies that “exclude same-sex couples from consideration as foster or adoptive parents …” (Compl. ¶ 1 and Prayer for Relief, ECF No. 1). But this requested relief will not satisfy Plaintiffs’ alleged injury.
This relief will certainly not permit the Plaintiffs to foster or adopt children in the future. They can do that now. At most, the relief will alleviate Plaintiffs’ legal objection. But that will in turn force some religious agencies to stop foster and adoption placement, leaving many Michigan families and children out in the cold. See 04/22/15 Hearing at 1:07:03-1:07:14 (testimony of Vicki Schultz) (“Without these bills, agencies such as ours may be asked to perform services which would go against our belief system, ultimately forcing us out of the foster care and adoption services.”). Producing that result redresses no legal harm; it inflicts a practical harm on others. III. The Complaint should be dismissed for failure to state an Establishment
Clause or Equal Protection claim. Plaintiffs do not challenge state action.
Establishment Clause and Equal Protection claims both require state action. Edmonson v. Leesville Concrete Co., 500 U.S. 614, 619 (1991). To discern state action, the Sixth Circuit uses the public-function test, the state-compulsion test, and the symbiotic-relationship or nexus test. Collyer v. Darling, 98 F.3d 211, 232 (6th Cir. 1996).
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But under no test does mere regulation of a private party convert that private party into a state actor. See Rendell-Baker v. Kohn, 457 U.S. 830, 841 (1982) (holding private school’s personnel decisions not attributable to the state, despite “extensive regulation of the school generally”); Adams v. Vandemark, 855 F.2d 312, 316-17 (6th Cir. 1988) (holding private not-for-profit corporation was not a state actor, even though subject to state and federal regulation). Nor does public funding or private use of public property establish state action. See, e.g., Rendell-Baker, 457 U.S. at 840 (finding private school’s personnel decisions not attributable to the state, despite the fact that “virtually all of the school’s income was derived from government funding”); Wolotsky v. Huhn, 960 F.2d 1331, 1336 (6th Cir. 1992) (finding private not-for-profit corporation which derived “a significant portion of its funding from the government” and which leased one of its facilities from the government at nominal cost was not a state actor); Crowder v. Conlan, 740 F.2d 447, 450 (6th Cir. 1984) (holding the state was not responsible for private hospital’s personnel decisions even if the hospital derived “a considerable percentage of its revenues from governmental funding” and the county was “owner and lessor of the hospital’s physical plant”). Id. at 453.
Applied in this instance, the Plaintiffs do not object to any decision attributable to the state. While potential adoption and foster families “must submit an application for a foster care license or to be certified to adopt” by the state (Compl.
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¶ 33, ECF No. 1), child placement agencies make their own independent assessment whether they will place a child with a particular family before the state evaluates the family for fostering or adoption.18 Plaintiffs merely object to this independent assessment made by certain religious placing agencies. (Compl. ¶¶ 61-63, ECF No. 1). The state simply has no involvement in that prior assessment and cannot be blamed for it.
P.A. 53 complies with the Establishment Clause because it promotes the secular purpose of protecting children. In Marsh v. Chambers, Van Orden v. Perry, and Town of Greece v. Galloway, the Supreme Court evaluated Establishment Clause claims by asking whether the challenged action was consistent with the country’s historical practices and understandings. See Smith v. Jefferson Cty. Bd. of Sch. Comm’rs, 788 F.3d 580, 602 (6th Cir. 2015) (Batchelder, J., concurring in part) (surveying these cases). In contexts different from this case, the Sixth Circuit has continued to apply the Lemon/endorsement test rather than the more historical approach. Id. at 588 (applying Lemon in school context). No matter which approach the Sixth Circuit would use in the adoption context, P.A. 53 complies with the Establishment Clause.
18 See 02/18/15 Hearing at 30:07-30:26 (testimony of Jose Carrera) (“What we do when a family comes to us to become a foster parent, an adoptive parent, we do an assessment and make a recommendation to the state. The state is the one that approves or denies their licensure. So all we’re doing is an assessment at that point … for the parents …”).
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First, P.A. 53 fits the historical practices of our country. As DefendantIntervenors note, private, mostly religious, organizations developed the adoption and foster care system, and the state did not become involved until somewhat recently. Def.-Intervenors’ Mot. to Dismiss 7-9, ECF No. 19.19 Evaluating P.A. 53 and Defendants’ actions against this historical backdrop, there is no unconstitutional establishment of religion. Just as in legislative prayer, religious influences have traditionally served a role in the adoption context. The Establishment Clause should and correctly does accommodate this historical reality.
Next, P.A. 53 satisfies the Lemon/endorsement test which analyzes whether the challenged action has a secular purpose, whether it conveys a message endorsing religion to the objective observer, and whether it causes an excessive entanglement with religion. See Jefferson Cty., 788 F.3d at 587 (summarizing this test). As for secular purpose, P.A. 53 achieves the unquestionable secular purpose of “having as many possible qualified adoption and foster parent agencies in this state.” Mich. Comp. Laws §§ 722.124e(1)(a)(c)-(e). DHHS’s interpretation of the law also protects the free exercise rights of private child placing agencies and families. See Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 12 n.2 (1989) (plurality opinion) (noting
19 See also 02/18/15 Hearing at 13:10-13:48 (testimony of Tom Hickson) (noting that “[f]or over 100 years, the Catholic Church has supported charity agencies operating in Michigan to provide a multitude of services to the poor and vulnerable… Historically, the church provided this service through its many agencies since well before the state ever had any involvement in child placement.”).
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that a state may reasonably conclude “that religious groups generally contribute to the cultural and moral improvement of the community . . . and enhance a desirable pluralism of viewpoint and enterprise.”). There is no reason to doubt the authenticity of these secular purposes. See ACLU v. Grayson Cty., 591 F.3d 837, 853 (6th Cir. 2010) (noting that courts must show “deference to the government’s stated reasons” in Establishment Clause context).
As for endorsement, the reasonable person would see P.A. 53 and its implementation for what they are: good faith efforts to maximize the number of children in foster and adoption care. In this context, the reasonable person would know that Michigan neutrally allows both private religious and non-religious child placing agencies to work with families of all stripes. Allowing religious groups to live out their faith in the adoption context does not endorse religion; it avoids burdening religion to help place vulnerable children in a loving home. The system as a whole works to benefit everyone, in a religious neutral way.
Finally, as for entanglement, P.A. 53 and its implementation avoid excessive entanglement by ensuring the state does not referee the internal decisions of religious agencies to approve or refer a particular applicant. By taking a more hands-off approach, P.A. 53 lets religious organizations be religious yet still serve the public good. To be sure, Michigan cannot completely take a hands-off approach in the adoption context. The state must monitor families to ensure they are serving the best
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interest of children. But that does not require ongoing, excessive monitoring of agencies. And mere “interaction” or “involvement” between the state and a religious group does not create excessive entanglement. Agostini v. Felton, 521 U.S. 203, 233 (1997); see also Joseph R. Ganahl, Fostering Free Exercise, 88 NOTRE DAME L. REV. 457, 467 (2012) (concluding that statutes that allow religious organizations to place families comply with Constitution).
Apart from mere interaction, Plaintiffs can only speculate about excessive entanglement. Such speculation is not enough. See Wilder v. Bernstein, 848 F.2d 1338, 1348 (2d Cir. 1988) (“In the context of child care, however, where the state is obliged to act one way or the other to meet religious needs, it is entirely appropriate to accept some risks and assess entanglement primarily on the basis of what occurs in fact, not what is apprehended to occur.”).20
P.A. 53 complies with the Equal Protection Clause because it satisfies rational basis review. The Equal Protection Clause is “essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). But not every government distinction triggers strict
20 Even in the heated abortion context, the government accommodates healthcare providers who have religious objections to performing abortions. See Robin F. Wilson, A Matter of Conviction: Moral Clashes over Same-Sex Adoption, 22 BYU J. PUB. L. 475, 484-85 (2008) (identifying these accommodations including the Church Amendment, 42 U.S.C. § 300a-7 et seq). Just as courts have upheld these accommodations, this court should do the same here. Id.
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scrutiny. Only those that adversely impact “a suspect class” or invade “a fundamental right” do; all other classifications receive rational basis review. Mt. Elliott Cemetery Ass’n v. City of Troy, 171 F.3d 398, 406 (6th Cir. 1999).
Here, Plaintiffs cannot identify how P.A. 53 implicates a fundamental right or any suspect classification. That alone forces rational basis review. Even then, Plaintiffs cannot pinpoint any unequal treatment by the state. Michigan treats every potential foster family alike, according to the same neutral criteria. Families can adopt or foster children regardless of their sexual orientation. At most, Plaintiffs object to DHHS accommodating religious placement agencies in a way that does not affect Plaintiffs. That hardly constitutes unequal treatment of Plaintiffs.
Regardless, Michigan’s actions satisfy rational basis review, which is satisfied “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” E. Brooks Books, Inc. v. Shelby Cty., 588 F.3d 360, 364 (6th Cir. 2009) (citation omitted). And that holds true “even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Id.
P.A. 53 and its implementation satisfy this very low bar because having a “broad spectrum of organizations and groups, some of which are faith based and some of which are not faith based,” increases the likelihood that as many Michigan children as possible will find their “forever home.” Mich. Comp. Laws §
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722.124e(1)(d). Moreover, Michigan has an interest in not violating the free exercise rights of fostered and adopted children in the custody of the state or of the child placement agencies themselves. Mich. Comp. Laws § 722.124e(1)(e).
This Court should avoid a ruling that clashes with the federal or state Free Exercise Clauses. Setting aside that P.A. 53 creates no constitutional problem, this Court should dismiss Plaintiffs’ lawsuit to avoid creating a constitutional conflict—violating others free exercise rights. See Michigan v. Doran, 439 U.S. 282, 294 n.5 (1978) (noting that “when a potential conflict between the Extradition Clause and some other constitutional provision has been recognized, this Court long ago suggested that the Clause be interpreted so as to avoid the conflict.”). In terms of federal free exercise rights, Defendant-Intervenors discuss how Plaintiffs’ requested relief would create First Amendment concerns, including the fact that faith-based agencies may not be excluded because of their religious identity. See Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017) (“[T]he exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified … is odious to our Constitution all the same, and cannot stand.”); Def.-Intervenors’ Mot. to Dismiss 14-24, ECF No. 19. Amicus would add that Plaintiffs’ requested relief would also likely contradict the Michigan Free Exercise Clause, which provides more protection than the federal Free Exercise Clause. See Country Mill Farms, LLC v. City of E. Lansing, No. 1:17-CV-487, 2017 WL
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5514818, at *16 (W.D. Mich. Nov. 16, 2017) (concluding that Michigan Free Exercise Clause requires burdens on religious beliefs to satisfy “the compelling state interest test”).
Of course, any federal constitutional requirement would trump a state constitutional provision. But federalism and constitutional avoidance concerns favor interpreting the federal Establishment Clause in a way that avoids unnecessary conflict with the Michigan constitution. Cf. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654 (1995) (concluding in preemption context that Court is reluctant to adopt interpretation overriding state law). This Court should likewise avoid the unnecessary and artificial conflict Plaintiffs try to create between the Establishment Clause and the free exercise rights of Michigan citizens.
CONCLUSION When it comes to adoption and fostering, children should be the top priority. Because P.A. 53 places children first and tries to maximize their chance to receive the love and care they deserve, Amici respectfully ask this Court to dismiss Plaintiffs’ lawsuit against this common-sense legislation.
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Respectfully submitted this 30th day of January, 2018.

Timothy Denney (P39990) Rickard, Denney, Garno & Leichliter 110 N. Saginaw Street, Ste. 1 Lapeer, MI 48446 (810) 664-0750 Tdenney@twdpclaw.com

/s/ Jeremy D. Tedesco
Kristen K. Waggoner (AZ Bar. No. 032382)* David A. Cortman (AZ Bar No. 029490) Jeremy D. Tedesco (AZ Bar No. 023497) Jonathan A. Scruggs (AZ Bar No. 030505)* Katherine L. Anderson (AZ Bar No. 033104*) Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 kwaggoner@adflegal.org dcortman@adflegal.org jtedesco@adflegal.org jscruggs@adflegal.org kanderson@adflegal.org

Attorneys for Amicus Curiae

*Pending admission

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CERTIFICATE OF SERVICE I hereby certify that on January 30, 2018, I electronically filed the foregoing document with the Clerk of Court using the ECF system which will provide electronic copies to counsel of record.
/s/ Jeremy D. Tedesco Jeremy D. Tedesco (AZ Bar No. 023497) Alliance Defending Freedom 15100 N. 90th Street Scottsdale, AZ 85260 (480) 444-0020 jtedesco@adflegal.org
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ATTACHMENT 1

2:17-cv-13080-PDB-EAS Doc # 26-2 Filed 01/30/18 Pg 2 of 2 Pg ID 614

ATTACHMENT 1

COMPLETE LIST OF AMICI CURIAE

A. Michigan State Senators

Darwin Booher Jack Brandenburg Tom Casperson Patrick Colbeck Judy Emmons Ken Horn Peter MacGregor

Arlan Meekhof Mike Nofs Phil Pavlov John Proos David Robertson Tonya Schuitmaker

B. Michigan State Representatives

Julie Alexander Tom Barrett Joseph Bellino John Bizon Julie Calley Ed Canfield Triston Cole Laura Cox Kathy Crawford Diana Farrington Ben Frederick Gary Glenn Joseph Graves Shane Hernandez Holly Hughes Pamela Hornberger Gary Howell Larry Inman Steven Johnson Bronna Kahle

Tim Kelly Kenneth Kurtz* Dan Lauwers Beau LaFave Eric Leutheuser Peter Lucido Steve Marino Aaron Miller Jeff Noble John Reilly Daire Rendon Jim Runestad Jason Sheppard Jim Tedder Lana Theis Curt Vanderwall Hank Vaupel Rob Verheulen Roger Victory Michael Webber

*Former Representative

 
 Case 2:17-cv-13080-PDB-EAS ECF No. 49 filed 09/14/18 PageID.1070 Page 1 of 93

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; REBECCA BUSK-SUTTON; and JENNIFER LUDOLPH,
Plaintiffs,

Case No. 17-cv-13080
Paul D. Borman United States District Judge

v.

NICK LYON, in his official capacity as the Director of the Michigan department of Health and Human Services; and HERMAN MCCALL, in his official capacity as the Executive Director of the Michigan Children’s Services Agency,

Defendants, and

ST. VINCENT CATHOLIC CHARITIES, MELISSA BUCK, CHAD BUCK, and SHAMBER FLORE,

Intervening Defendants. _____________________________________/

OPINION AND ORDER DENYING IN LARGE PART DEFENDANTS’ MOTIONS TO DISMISS (ECF NOS. 16 AND 19), AND JUST DISMISSING
THE CLAIMS OF PLAINTIFF LUDOLPH FOR LACK OF STANDING

Plaintiffs filed their 42 U.S.C. § 1983 Complaint challenging Defendants Nick

Lyon (sued in his official capacity as the Director of the Michigan Department of

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Health and Human Services “DHHS”) and Herman McCall’s (sued in his official capacity as the Executive Director of the Michigan Children’s Services Agency “CSA”) practice of permitting state-contracted and taxpayer-funded child placing agencies to use religious criteria to screen prospective foster and adoptive parents for children in the foster care system. Plaintiffs are prospective adoptive same-sex couples and individuals who have contacted certain faith-based Michigan adoption agencies and, based upon their same-sex status, been denied the state-contracted-for services to process their papers necessary for consideration for child placement by all adoption agencies. Plaintiffs allege that the refusal of these faith-based agencies to consider them as prospective adoptive parents violates their rights protected by the Establishment Clause of the First Amendment to the United States Constitution and also violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs seek a declaratory judgment that these practices violate the First and Fourteenth Amendments and seek an Order enjoining Defendants Lyon and McCall, in their official capacities, from contracting with or providing taxpayer funding to private child placing agencies that exclude same-sex couples from consideration as foster or adoptive parents or otherwise employ religious criteria in the screening of prospective foster and adoptive parents.
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The Court has granted the motions of the Intervenor Defendants, St. Vincent Catholic Charities, Melissa Buck, Chad Buck, and Shamber Flore to intervene in this action. (ECF Nos. 31, 34.) The State Defendants and the Intervenor Defendants now move to dismiss the Plaintiffs’ Complaint. (ECF Nos. 16, 19.) The Court also accepted and has considered (as appropriate to the stage of proceedings) the Group of 53 Michigan Legislators’ Amicus Brief. (ECF No. 26.) The Court held oral argument on July 12, 2018, on both motions to dismiss. For the reasons that follow, the Court DENIES Defendants’ motions to dismiss except that the Court GRANTS the motion to dismiss Plaintiff Jennifer Ludolph’s claims for lack of standing. I. FACTUAL BACKGROUND1
Plaintiffs allege that the DHHS is responsible for the approximately 13,000 children who are in the State’s foster care system because they have been removed from their families by the State due to abuse or neglect or otherwise have become wards of the State. The State is responsible for finding these children appropriate
1 This factual background is taken virtually verbatim from the allegations of Plaintiff’s Complaint and accepted as true, as required when the Court is considering a motion under Fed. R. Civ. P. 12(b)(6) for failure to state a claim and under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction due to want of standing. “‘For purposes of ruling on a motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party.’” Parsons v. U.S. Dept. of Justice, 801 F.3d 701, 710 (6th Cir. 2015) (quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)).
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foster and adoptive families to care for them. (Compl. ¶ 2.) According to the allegations of the Complaint, the DHHS contracts out public adoption and foster care services to private agencies and pays these agencies with taxpayer funds to perform this government function. Some of these agencies refuse to accept prospective families headed by same-sex couples or to place children with families headed by same-sex parents based upon the agency’s religious beliefs. DHHS has not prevented the agencies from engaging in this conduct. (Compl. ¶ 3.)
Plaintiffs Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton are two prospective adoptive families that were turned away by state-contracted and taxpayer funded child placing agencies based on those agencies’ religious objections to samesex couples. Plaintiffs allege that these couples are ready, willing, and able to provide a “forever family” to children in the foster care system. Plaintiff Jennifer Ludolph was in the Michigan foster care system when she was a teenager and, as a taxpayer, she objects to taxpayer dollars funding child-placing agencies that turn away qualified families because of the agencies’ religious objections to those families. The Complaint alleges that all Plaintiffs are Michigan taxpayers who object to their taxpayer dollars being used to pay for public child welfare services that are provided based on religious standards rather than professional child welfare standards and object to the use of taxpayer funds to underwrite and endorse religious beliefs to
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which they do not subscribe. Plaintiffs allege that their claims concern only the State’s provision of taxpayer-funded government services based on religious and discriminatory criteria and do not challenge any private agency’s provision of private adoption services or use of non-public funds. (Compl. ¶¶ 5-8.)
A. Plaintiffs’ Allegations Regarding Michigan’s Child Welfare System According to the allegations of the Complaint, in a typical case the state Child Protective Services removes a child from a home for abuse or neglect and a court orders that the child be placed into foster care. If a child ultimately cannot be reunited with his or her parents and parental rights are terminated, DHHS seeks to find a permanent family for the child, typically through adoption. DHHS’s responsibilities for such children include recruiting and identifying appropriate families to care for the children, either temporarily as foster parents or permanently as adoptive families. According to the allegations of the Complaint, DHHS performs this public function in part by contracting with private agencies that are licensed by DHHS’s Division of Child Welfare Licensing (“DCWL”) as “child placing agencies” to recruit, screen, train, and license prospective foster and adoptive parents and to place children in appropriate foster or adoptive homes, as authorized by Michigan statute, Mich. Compl. Laws §§ 722.11(1)(c), 722.115(3), 722.922. Plaintiffs allege that, although DHHS retains ultimate supervisory responsibility in all cases, much of the on-the-
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ground foster care and adoption work is performed by taxpayer-funded child placing agencies. (Compl. ¶¶ 24-25.)
Plaintiffs allege that through rulemaking authorized by statute, DHHS has conferred authority on child placing agencies to make decisions regarding licensing foster parents and certifying adoptive parents, as well as placement of children into foster and adoptive homes. According to the allegations of the Complaint, child placement agencies have an obligation to maintain ongoing recruitment programs “to ensure an adequate number of suitable and qualified homes” to meet the needs of the children served by the agency. Under these administrative rules, agencies have substantial discretion in evaluating applicants as well as selecting appropriate placements for children into foster or adoptive homes. (Compl. ¶ 26, citing Mich. Admin. Code R. 400.12301(1), 400.12701, 400.12304(1), 400.12706, 400.12404, 400.12709.)
Plaintiffs allege that after an agency accepts a child’s case from DHHS, it immediately begins receiving per diem compensation from the State. For example, the Complaint alleges, some agencies receive at least $40 per day from the State for each adoption case they handle. These payments cease after a child is permanently placed and the agencies receive a lump-sum payment after placement depending on the outcome of the case. (Compl. ¶ 27.) According to the allegations of the
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Complaint, to fund the state’s welfare system, the Michigan legislature annually makes appropriations for adoption and foster care services and the DHHS utilizes these appropriated funds to pay private child placing agencies under contract with the State to provide foster care and adoptive services. Plaintiffs allege that the DHHS has entered into adoption and foster care service contracts with over 100 private child placing agencies statewide, operating in multiple counties, many of whom are religiously affiliated. (Compl. ¶¶ 28-30.)
According to the allegations of the Complaint, the contracts entered into between DHHS and child placing agencies require the contracting agencies to comply with DHHS’s non-discrimination statement, which mandates that agencies “will not discriminate against any individual or group because of race, sex, religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs or disability.” This requirement, Plaintiffs allege, “applies to all applications filed for adoption of [DHHS] supervised children, including [DHHS] supervised children assigned to a contracted agency.” The contracts also require each contracting agency to “develop and implement a plan for adoptive home recruitment, retention, and support consistent with” DHHS’s licensing standards applicable to the agency’s license. (Compl. ¶¶ 31-32.)
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Plaintiffs allege that families interested in fostering or adopting a child out of the foster care system must submit an application for a foster care license or to be certified to adopt. Each private child placing agency maintains a roster of families that it has licensed or certified that it generally uses for family placements for children assigned to its care. According to the allegations of the Complaint, the eligibility requirements for families interested in adopting from the foster care system are provided in the DHHS Adoption Program Statement, also known as Publication 255, which provides the same non-discrimination provision as the contracts with the child placing agencies and also state that “[t]he eligibility criteria for adoption of [DHHS]supervised wards must not be more restrictive than the criteria in DHS Publication 255 when a contracted adoption agency is providing DHS adoption services.” DHHS is contractually obligated to terminate its agreement with a child placing agency if the agency “[e]ngages in any conduct that may expose [DHHS] to liability” or “fails to cure a breach” of the agreement after receiving notice, and DHHS retains the right to terminate the agreement immediately “without penalty and for any reason.” (Compl. ¶¶ 33-36.)
Plaintiffs allege that, although DHHS is aware that certain child placing agencies have refused to accept same-sex couples for processing necessary to foster or adopt children in the child welfare system, DHHS has not taken any remedial action
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under its contracts against any agency for failure to abide by the DHHS nondiscrimination statement or Publication 255, or the United States Constitution. (Compl. ¶ 37.)
B. Plaintiffs’ Allegations Regarding 2015 Michigan House Bills Nos. 4188, 4189, and 4190
For years, according to the allegations of the Complaint, some private agencies providing foster care and adoption services under contract with the State have refused to process same-sex couples seeking to qualify as foster or adoptive parents because of the agencies’ religious beliefs. Starting as early as 2013, according to Plaintiffs’ Complaint, members of the Michigan legislature attempted to introduce legislation that would codify and authorize the practice of permitting agencies to turn away samesex couples on the basis of religious objection. Those early efforts at passing legislation did not succeed. In the 2015-2016 Legislative session, Michigan House Bills 4188, 4189, and 4190 presented the issue again. According to the allegations of the Complaint, during a hearing before the House on February 18, 2015, the director of clinical services at Intervenor Defendant St. Vincent confirmed that the organization would not work with gay and lesbian prospective parents, explaining that when prospective parents to whom they were religiously opposed approached them: “If they let us know that they’re unmarried, or they’re gay or lesbian, we immediately
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recommend, make a referral to another agency.” Allegedly the President of another faith-based agency, Bethany, asserted that to require Bethany to adhere to principles of non-discrimination would present them with “an untenable choice” of “choos[ing] between their desire to help children and families and their fidelity to their religious principles.” The President of Bethany stated that “House Bills 4188-4190 are necessary” to “codify into state law what has been in practice,” and threatened that “if statewide policy changes in a way that would force Catholic agencies to choose between violating strongly held religious beliefs or ceasing cooperation with the state, the agencies will cease to cooperate.” Plaintiffs also allege that the President and CEO of the Michigan Catholic Charities also weighed in on the issue by letter to Governor Rick Snyder stating that Catholic agencies “handl[e] approximately twenty percent of the active foster care and adoption cases in Michigan,” and expressed concern that there were objections to “the religious manner by which faith-based child placement agencies operate.” (Compl. ¶¶ 38-43, 45-46.)
According to the allegations of the Complaint, the Michigan House of Representatives passed the Bills in March, 2015 and on June 10, 2015, the Michigan Senate passed the bills, which were signed into law the following morning by Governor Snyder as 2015 Public Acts 53, 54, and 55, codified at Mich. Comp. Laws § 400.5a, 722.124c, 722.124f, and 710.23g. (Compl. ¶¶ 44, 47.) The statutes provide
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in relevant part that, “[t]o the fullest extent permitted by state and federal law, a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.” Mich. Comp. Laws § 722.124e(2). Additionally, the statute provides that, “[t]o the fullest extent permitted by state and federal law, the state or local unit of government shall not take an adverse action against a child placing agency on the basis that the child placing agency has declined or will decline to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency’s sincerely held religious beliefs.” Id. § 722.124e(3). Under the statute, “services” are defined to “include[] any service that a child placing agency provides except foster care case management and adoption services provided under a contract with [DHHS].” Id. § 722.124e(7)(b). The Plaintiffs allege that some child placing agencies have interpreted these statutes as permitting taxpayer-funded state-contracted child placing agencies to turn away prospective families for children in foster care based on religious criteria and the State has allowed this practice to occur. (Compl. ¶¶ 48-49.)
C. Plaintiffs’ Allegations Regarding Harm to Children Resulting From the Defendants’ Authorization of Religious-Based Exclusions by Child Placing Agencies
Plaintiffs allege that there is a shortage of foster and adoptive families in
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Michigan and that as a result of this shortage, some children in State custody have and may continue to have multiple temporary placements before a suitable permanent home is found while other children may have to be separated from their siblings or placed in foster homes far from their school and community and other children may have to be placed in group homes and may reach the age of majority without ever being placed with a permanent family. (Compl. ¶¶ 51-52.) Plaintiffs allege that each time a prospective parent who is able to provide a loving and caring family for a child is turned away by a child placing agency because of a religious objection to their sexual orientation (or any other religious objection) the pool of families available for the children in the system diminishes, reducing children’s option for placement. (Compl. ¶ 53.)
According to the allegations of Plaintiffs’ Complaint, every major professional organization dedicated to children’s welfare, including the Child Welfare League of America, the National Association of Social Workers, the National Adoption Center, the American Psychological Association, the American Psychiatric Association, the American Academy of Family Physicians, the American Academy of Pediatrics, and the American Medical Association, affirmatively states that gay and lesbian parents are as likely as heterosexual parents to provide supportive and healthy environments for their children and opposes any discrimination based on sexual orientation in
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matters of adoption and foster care. Plaintiffs allege that the loss of these potentially qualified families exacerbates the shortage of potential foster and adoptive families, resulting in greater costs to the State welfare system and the result that some children who otherwise would be matched with a loving same-sex family may be denied the family that best matches their individual needs. (Compl. ¶¶ 54-56.) II. LEGAL STANDARDS
A. Standing: Fed. R. Civ. P. 12(b)(1) Article III of the United States Constitution defines the power of federal courts and restricts that power to resolving “cases or controversies.” A plaintiff who lacks standing does not present a case or controversy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.”). “‘The party invoking federal jurisdiction bears the burden of establishing these elements.’” Parsons v. U.S. Dept of Justice, 801 F.3d 701, 710 (6th Cir. 2015). “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Parsons, 801 F.3d at 710 (quoting Lujan, 504 U.S. at 561). “When considering whether pleadings make out a justiciable case for want of standing, our analysis must be confined to the four corners
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of the complaint.” Id. at 706. However, since the elements necessary to establishing standing “are not mere
pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Thus, while the Court may accept as true the general allegations of the Plaintiffs’ Complaint regarding these elements at the pleading stage, Plaintiffs must, at later stages of the litigation, support these allegations with the “manner and type” of evidence demanded at those later stages. Id. Plaintiffs must demonstrate standing separately for each claim they assert. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006) (“[A] plaintiff must demonstrate standing for each claim he seeks to press.”).
B. Failure to State A Claim: Fed. R. Civ. P. 12(b)(6) Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must “construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012). To state a claim, a complaint must
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provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[T]he complaint ‘does not need detailed factual allegations’ but should identify ‘more than labels and conclusions.’” Casias v. Wal–Mart Stores, Inc., 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The court “need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference.” Handy-Clay, 695 F.3d at 539 (internal citations and quotation marks omitted). In other words, a plaintiff must provide more than a “formulaic recitation of the elements of a cause of action” and his or her “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56. The Sixth Circuit has recently that “[t]o survive a motion to dismiss, a litigant must allege enough facts to make it plausible that the defendant bears legal liability. The facts cannot make it merely possible that the defendant is liable; they must make it plausible.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
In ruling on a motion to dismiss, the Court may consider the complaint as well as (1) documents that are referenced in the plaintiff’s complaint and that are central to plaintiff’s claims, (2) matters of which a court may take judicial notice (3) documents that are a matter of public record, and (4) letters that constitute decisions
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of a governmental agency. Thomas v. Noder-Love, 621 F. App’x 825, 829 (6th Cir. 2015) (“Documents outside of the pleadings that may typically be incorporated without converting the motion to dismiss into a motion for summary judgment are public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.”) (Internal quotation marks and citations omitted); Armengau v. Cline, 7 F. App’x 336, 344 (6th Cir. 2001) (“We have taken a liberal view of what matters fall within the pleadings for purposes of Rule 12(b)(6). If referred to in a complaint and central to the claim, documents attached to a motion to dismiss form part of the pleadings. . . . [C]ourts may also consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.”); Greenberg v. Life Ins. Co. Of Virginia, 177 F.3d 507, 514 (6th Cir. 1999) (finding that documents attached to a motion to dismiss that are referred to in the complaint and central to the claim are deemed to form a part of the pleadings). Where the claims rely on the existence of a written agreement, and plaintiff fails to attach the written instrument, “the defendant may introduce the pertinent exhibit,” which is then considered part of the pleadings. QQC, Inc. v. Hewlett-Packard Co., 258 F. Supp. 2d 718, 721 (E.D. Mich. 2003). “Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document.” Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997).
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III. ANALYSIS Standing must be demonstrated separately as to each claim of the Complaint.
DaimlerChrysler, 547 U.S. at 352. The Dumonts and the Busk-Suttons (“the Prospective Parent Plaintiffs”) claim that they have standing to bring both their Equal Protection and Establishment Clause claims based upon “being turned away” by certain faith-based child placing agencies when they sought to adopt. (ECF No. 28, Pls.’ Resp. to State Defs.’ Mot. 9-10, PgID 641-42.) All Plaintiffs, including Ms. Ludolph, claim to separately have standing to bring their Establishment Clause claims as Michigan taxpayers based upon “the disbursement of taxpayer funds spent under Michigan’s statutory child welfare system.” (Id. at 10, PgID 642.)
A. The Prospective Parent Plaintiffs Have Adequately Alleged General Article III Standing for Their Establishment Clause and Equal Protection Claims.
The Prospective Parent Plaintiffs claim to have general Article III standing to bring both their Equal Protection and Establishment Clause claims based upon their allegation that they contacted certain “state-contracted” child placing agencies and were turned away because of the agencies’ religious objections to same-sex couples. (ECF No. 28, Pls.’ Resp. to State Defs.’ Mot. 9.)
In order to establish Article III standing for either their Equal Protection or their Establishment Clause claims, Plaintiffs must establish the following elements:
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First, Plaintiff must have suffered an injury in fact—an invasion of a legally-protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Parsons, 801 F.3d at 710 (quoting Lujan, 504 U.S. at 560-61). “The injury must be to a legally cognizable right.” Id. 1. The Prospective Parent Plaintiffs have adequately alleged injury-in-
fact. Here the Prospective Parent Plaintiffs assert Equal Protection and Establishment Clause violations and claim “both stigmatic and practical injuries” allegedly stemming from the “barrier to adopting a child out of the state-run foster care system,” which Plaintiffs allege “were caused by the State of Michigan and are redressable by this Court.” (Pls.’ Resp. to State Defs.’ Mot. 1-2.) “Stigmatization also constitutes an injury in fact for standing purposes.” Parsons, 801 F.3d at 712 (citing Heckler v. Mathews, 465 U.S. 728, 739–40 (1984)). “[A] claim of stigmatic injury, or denigration, suffered by all members of a [] group,” i.e. “abstract stigmatic injury,” is not “judicially cognizable” for purposes of standing. Allen v. Wright, 468 U.S. 737, 754, 756 n. 22 (1984), abrogated on other grounds in Lexmark Int'l, Inc. v. Static
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Control Components, Inc., ___ U.S. ____, 134 S.Ct. 1377 (2014). However, such
“stigmatic injury” can “accord[] a basis for standing [] to ‘those persons who are
personally denied equal treatment’ by the challenged discriminatory conduct.” 468
U.S. at 755 (quoting Heckler, 465 U.S. at 739-40).2 In Allen, an equal protection case,
the plaintiffs filed suit against the IRS for its failure to deny tax exempt status to
private schools that discriminated on the basis of race. The plaintiffs were parents of
African American children who attended public school who claimed that they were
“harmed directly by the mere fact of Government financial aid to discriminatory
private schools.” Id. at 752. The Supreme Court found that the parents lacked
standing because they had never claimed the exemption and thus had not “personally
been denied equal treatment.” Id. at 755. The Prospective Parent Plaintiffs, by
contrast, allege stigmatic injury because they were personally turned away by certain
2 It is not clear that the same “stigmatic injury” will always suffice equally as the foundation for standing to bring both an Establishment Clause and an Equal Protection Claim. See, e.g., Moore v. Bryant, 853 F.3d 245, 249-50 (5th Cir. 2017) (collecting cases “reject[ing] attempts to cross-pollinate Equal Protection Clause standing jurisprudence with Establishment Clause cases”). The Fifth Circuit draws on the distinction between Allen and its progeny on the one hand, which require a personal denial of equal treatment, and the Establishment Clause cases which find sufficient basis for standing in injuries caused by “unwanted and unwelcome” exposure to a religious display – an injury that would not suffice under the Equal Protection clause. In this case, Plaintiffs have claimed injury from stigma caused by an actual incident directed to them personally, being turned away from certain faith-based child placing agencies, and not from abstract stigmatic harm generally to same-sex couples. These allegations would satisfy the more stringent of the two tests at this pleading stage.
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faith-based child placing agencies. The Prospective Parent Plaintiffs suggest that they are not just part of a larger group that claims unequal treatment – they personally encountered the unequal treatment about which they complain through that act of being turned away as prospective adoptive parents. They have alleged injury-in-fact with respect to their Equal Protection claim.
The Prospective Parent Plaintiffs also argue that courts have found standing based on stigmatic harm in Establishment Clause cases. Moss v. Spartanburg Cnty. Sch. Dist. Seven, 683 F.3d 599 (4th Cir. 2012), was a suit under section 1983 filed against a school district that, acting pursuant to statutory authority, “adopted a policy allowing public school students to receive academic credits for off-campus religious instruction offered by private educators.” 683 F.3d at 601. The court reasoned that plaintiffs, none of whom were directly injured by the policy in terms of grades or credits, could not merely claim that they were “spiritually affronted” as a result of “unwelcome” interaction with religion. The court held that “spiritual stake” alone is insufficient to confer standing. Id. at 605-06. A plaintiff’s simple “abstract knowledge” of the policy and “feel[ing] like an outsider” (although sharing the Christian faith) upon learning of the policy were insufficient where there was no evidence that the plaintiff had received or encountered promotional materials. Id. at 606. On the other hand, a different plaintiff in Moss, who was not Christian and who
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did receive promotional materials and discussed the materials with family, viewed the policy as favoritism in the school district for Christianity that made their family feel like outsiders, and did thereby allege sufficient injury in fact: “Feelings of marginalization and exclusion are cognizable forms of injury, particularly in the Establishment Clause context, because one of the core objectives of modern Establishment Clause jurisprudence has been to prevent the State from sending a message to non-adherents of a particular religion “that they are outsiders, not full members of the political community.” Id. at 607.
Again, the Prospective Parent Plaintiffs allege stigmatic injury because they were personally turned away by certain faith-based child placing agencies – they allege that they personally encountered the stigmatic harm about which they complain through that act of being turned away as prospective adoptive parents. They have alleged injury-in-fact with respect to their Establishment Clause claim.
The Prospective Parent Plaintiffs also allege that they encountered “practical injuries” in addition to “stigmatic injuries” because the refusal by certain child placing agencies to accept them for screening “‘makes it more difficult for [them] to obtain a benefit than it is for’” opposite-sex couples. (Pls.’ Resp. to State Defs.’ Mot. 10, PgID 642) (quoting Northeastern Fla. Chapter of Assoc. Gen’l Contractors of America v. City of Jacksonville, 508 U.S. 656, 666 (1993)). Indeed, City of
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Jacksonville does instruct that “[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing.” 508 U.S. at 666. “The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.” Id.
Plaintiffs allege in their Complaint that faith-based agencies handle “20% of the active foster care and adoption cases in Michigan.” (Compl. ¶ 26.) Thus 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 the Prospective Parent Plaintiffs’ ability to adopt or foster a child in the State of Michigan. The Prospective Parent Plaintiffs have sufficiently alleged an injury separate from the stigmatic harm they claim to have suffered – the unequal treatment they received as a result of being turned away based upon their status as a same-sex couple, a barrier that makes “it more difficult for [same-sex couples to adopt] than it is for [heterosexual couples].” City of Jacksonville, 508 U.S. at 666. Defendants continue to assert that the Prospective Parent Plaintiffs had options at many other agencies but (1) this factual assertion is not alleged in Plaintiffs’ Complaint and
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indeed the opposite is alleged; and (2) Plaintiffs’ need not demonstrate that they would have been completely foreclosed – only that they could not compete for the right to adopt on the same footing as everyone else. Their Complaint sufficiently alleges such an injury.
Finally, Defendants assert, relying on Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816 (1977) and Renfro v. Cuyahoga County Dep’t of Human Services, 884 F.2d 943 (6th Cir. 1989), that Plaintiffs have no fundamental right to be foster or adoptive parents and therefore fail to allege a cognizable injury. (State Defs.’ Mot. 12, PgID 75; State Defs.’ Reply 1, PgID 667). Plaintiffs do not contest this fact and respond that they are not claiming “a liberty interest protected by substantive due process,” as was at issue in Smith and Renfro. They argue instead that their Equal Protection and Establishment Claims are premised on injuries they suffered as a result of the State Defendants’ practice of entering into contracts for the provision of state child welfare services with child placing agencies that use religious criteria to turn away prospective parents, causing Plaintiffs stigmatic harm and denying Plaintiffs the same opportunities to work with a child placing agency that is available to every other family in Michigan seeking to adopt. Their Complaint does not challenge any particular agency’s decision not to work with them. (Pls.’ Resp. to State Defs.’ Mot. 9 n. 9, PgID 641.)
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The Plaintiffs have adequately alleged injury in fact for both their Establishment Clause and Equal Protection claims.
2. The Prospective Parent Plaintiffs have adequately alleged that their injury is fairly traceable to the Defendants.
The State Defendants next assert that Plaintiffs’ claimed injuries are not “fairly traceable” to, or “caused by” these Defendants’ conduct because the child placing agencies, and not the State Defendants, are the parties alleged to have turned them away as prospective adoptive parents. For their part, these Defendants argue, the contracts that they maintain with the child placing agencies prohibit those agencies from discriminating against potential applicants. (State Defs. Mot. 13.) Plaintiffs respond that because the State contracts with child placement agencies and accepts that certain agencies may permissibly employ religious criteria to turn away prospective families headed by same-sex couples, the injury is fairly traceable to them as enablers of this conduct.
In Parsons, supra, the Sixth Circuit disagreed with the district court’s conclusion that this traceability element was lacking “because the third-party law enforcement officials exercise independent judgment in committing the alleged injuries” by stopping/detaining/searching the Juggalos based upon their alleged gang affiliations:
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While the Court [in Lujan] did enumerate a heightened standard for demonstrating causation in the case of indirect injury caused by a third party, it makes clear that such a standard is satisfied where the plaintiff was able to “adduce facts showing that [the third-party's] choices have been or will be made in such manner as to produce causation and permit redressability of injury.” Parsons, 801 F.3d at 713 (quoting Lujan, 504 U.S. at 562). “The causation need not be proximate . . . [and] the fact that an injury is indirect does not destroy standing as a matter of course.” Id. at 713. See Warth, 422 U.S. at 504 (“The fact that the harm to petitioners may have resulted indirectly does not in itself preclude standing.”). In Parsons the Sixth Circuit concluded that plaintiffs, members of a musical group (the Insane Clown Posse) who called themselves “Juggalos,” were designated by the National Gang Intelligence Center (“the NGIC”) – “an informational center operating under the Federal Bureau of Investigation” – as a “hybrid gang.” 801 F.3d at 705. Plaintiffs alleged that this designation caused them to be stopped/searched/detained, in violation of their First and Fifth Amendment rights, by state and local law enforcement officers who were motivated by the NGIC’s designation of the Juggalos as a criminal gang. Id. at 706. The Sixth Circuit found that their claims of injury to their reputations and stigmatization allegedly caused by the conduct of the law enforcement officers satisfied the “injury” prong and that allegations that their injuries were caused “at least in part” by the agency’s designation
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of the Juggalos as a “gang” satisfied the traceability/causation prong. Id. at 713. In this case, according to the allegations of the Complaint, DHHS permits
certain child placing agencies to use religious eligibility criteria when screening prospective foster and adoptive families. The contracts with these agencies acknowledge an agency’s rights that are protected by the religious belief exemption provided in PA 53, which the faith-based agencies rely on to turn away prospective families headed by same-sex couples because of the agency’s religious beliefs. (Compl. ¶ 78.) Defendants admit that, “as Michigan law requires,” their contracts with the child placing agencies “expressly incorporate and protect a CPA’s rights under P.A. 53.” (State Defs.’ Mot. Ex. 1, 2016 Adoption Services Agreement Between DHHS and St. Vincent, § 2.9(e).) Here, the Plaintiffs have alleged that their injuries were caused by the State Defendants’ contractual and actual practice of permitting a child placing agency to refuse to work with a same-sex couple. Thus, Plaintiffs have alleged facts that “link” the State Defendants to their injuries by alleging that the State Defendants’ conduct enabled the child placing agencies to take the actions that they did with regard to same sex couples. As the Sixth Circuit observed in Parsons: “The Juggalos’ allegations link the 2011 NGTA Report to their injuries by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question. At this
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initial stage of the case, the Juggalos' allegations must suffice.” 801 F.3d at 714. Even if the State Defendants did not direct the child placing agencies to exclude samesex couples, “it is still possible to motivate harmful conduct without giving a direct order to engage in said conduct.” Id. “In the nebulous land of ‘fairly traceable,’ where causation means more than speculative but less than but-for, the allegation that a defendant's conduct was a motivating factor in the third party's injurious actions satisfies the requisite standard.” Id. at 714.
Here, Plaintiffs allege that because of the State Defendants’ practice of continuing to enter into contracts that allow the child placing agencies to use religious criteria in excluding same-sex couples, they have suffered both stigmatic and practical harm. This injury is at least “fairly traceable” to the State Defendants based on the allegations before the Court.
3. The Prospective Parent Plaintiffs have adequately alleged that their injuries are redressable by a favorable decision.
With regard to the final element, redressability, Defendants argue that an order enjoining the Defendants from contracting with faith-based agencies that only work with married, opposite-sex couples will not redress the Plaintiffs’ claimed injuries because it will leave the Plaintiffs right where they are – without the ability to seek the services of the child placement agencies that refused to work with them because those
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agencies will be forced to close and will be unable to offer any services at all. (State
Defs.’ Mot. 13.) Plaintiffs respond that Defendants cannot rely on the factual
assertion that these faith-based agencies will no longer be able to provide services
because those allegations are not contained in Plaintiffs’ Complaint. In any event, the
Plaintiffs argue, the relief they seek is not to work with a particular child placing
agency but to be able to work with any child placing agency on equal footing with all
other prospective adoptive couples, regardless of their sexual orientation.
Specifically, Plaintiffs ask the Court to:
A. Declare . . . that the State’s practice of allowing state-contracted, taxpayer-funded child placing agencies to disqualify prospective families headed by same-sex couples based on agencies’ religious beliefs violates the First and Fourteenth Amendments to the United States Constitution;
B. Enter an order enjoining Defendants, in their official capacities, from contracting with or providing taxpayer funding to private child placing agencies that exclude same-sex couples from consideration as foster or adoptive parents or otherwise employ religious criteria in decisions regarding the screening of prospective foster and adoptive parents . . .
C. Enter an order directing Defendants, in their official capacities, to ensure that lesbian and gay individuals and couples are treated the same as heterosexual individuals and couples by state-contracted child placing agencies.
(Compl. Relief Requested, PgID 21-22.)
“[I]t need not be likely that the harm will be entirely redressed, as partial redress
can also satisfy the standing requirement.” Parsons, 801 F.3d at 716 (citing Meese
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v. Keen, 481 U.S. 465, 476 (1987)) (alteration in original). Here, according to the allegations of Plaintiffs’ Complaint, the relief requested would be likely to redress Plaintiffs’ injuries stemming from alleged stigmatism and barriers to adoption because they plausibly allege in their Complaint that there will in fact be more options available to the Plaintiffs and they will no longer suffer the humiliation they allege they suffer now, if they are awarded the relief they seek. “It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of a suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress.” Parsons, 801 F.3d at 716. “While we cannot be certain whether and how the declaration sought by the [Plaintiffs] will affect third-party [child placement agencies], it is reasonable to assume a likelihood that the injury would be partially redressed where, as here, the [Plaintiffs] have alleged that the [child placement agencies] violated their rights because of [the State Defendants’ conduct].” Id. at 717.
For similar reasons, Intervenor Defendants’ reliance on Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976) is inapt. In Simon, a group of indigent patients and several welfare organizations brought suit against the Secretary of the Treasury and the Commissioner of Insurance asserting that the issuance of a certain Revenue Ruling, that afforded favorable tax treatment to
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nonprofit hospitals that offered only emergency room treatment to indigents, caused the hospitals to deny the indigent patients certain services. Id. at 28. The organizations were properly dismissed based on a lack of organizational standing and the Supreme Court limited its analysis to the claims of the individual indigent patients, at least some of whom allegedly were denied services by a hospital because of their inability to pay. No hospitals were named as defendants.
The Supreme Court concluded that the individual indigent patients lacked standing to sue. The Court reasoned that because the complaint alleged only that the Revenue Ruling “encouraged” hospitals to deny services to indigents, and because it was equally plausible that the hospitals would elect to forego favorable tax treatment rather than face “the undetermined financial drain of an increase in the level of uncompensated care,” id. at 43, the patients failed to carry their burden “[t]o establish that, in fact, the asserted injury was the consequence of the defendants’ actions, or that prospective relief will remove the harm.” Id. at 44-45. Because “[s]peculative inferences” were necessary to connect the patients’ injuries to the effect of the Revenue Ruling, and because the complaint suggested “no substantial likelihood that victory in [the] suit would result in respondents receiving the hospital treatment they desire[d],” there was insufficient directness of injury and therefore no basis for standing. Id. 45-46.
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As an initial observation, and as Plaintiffs point out, Simon did not involve religious-based discrimination and it did not involve a State partnering with a private entity to provide government services in the State’s stead. In any event, in this case Plaintiffs have alleged that they suffered stigmatic and practical harm as a result of the State’s practice of permitting faith-based agencies to turn them away due to their sexual orientation. And the faith-based agencies concede that their ability to turn away same sex couples and continue to partner with the State is dependent upon the religious belief protection they have been granted by the State. But Plaintiffs are not seeking the services of any particular child placing agency – they are asking that the barriers that they now face to adopting a child based on their sexual orientation be removed and they seek the opportunity to adopt a child based on the same criteria applied to every other family seeking to adopt in Michigan. If they are granted the relief they seek, those barriers will be eliminated and they will be able to pursue adoption on equal footing with other Michigan families. No speculative inferences are necessary here to conclude that the relief requested will result in the Plaintiffs receiving the dignity and equal treatment they seek.
Finally, relying on Fieger v. Michigan Supreme Court, 553 F.3d 955 (6th Cir. 2009), the Intervenor Defendants argue that a higher pleading standard governs the inquiry when, as here, a plaintiff seeks injunctive relief. Plaintiffs have met that
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burden here. Plaintiffs allege that they continue to suffer from their inability to work with any child placing agency of their choosing and that if the Court grants the relief they seek, breaking down the barriers to adoption that they now face, there will be greater opportunity for them to adopt, plausibly suggesting that they will personally benefit in a tangible way from the requested relief. Defendants urge that the facts are otherwise and that Plaintiffs’ options will be the same or fewer if the Court grants the requested relief. The Court cannot accept the Defendants’ controverting factual assertions at this stage of proceedings. However, as the Court previously remarked, since the elements necessary to establishing standing “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561. Thus, while the Court may accept as true the general allegations of the Plaintiffs’ Complaint regarding these elements at the pleading stage, Plaintiffs must, at later stages of the litigation, support these allegations with the “manner and type” of evidence demanded at those later stages. Id.
The Prospective Parent Plaintiffs have adequately alleged general Article III standing to proceed further with both their Establishment Clause and Equal Protection
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Claims.
B. Plaintiffs Have Failed to Establish Taxpayer Standing to Assert Their Establishment Clause Claims.
Defendants argue that because Plaintiffs challenge discretionary executive activity, i.e. the “Defendants’ practice of contracting with faith-based [child placing agencies],” (State Defs.’ Mot. 11, PgID 74) rather than challenging legislatively mandated spending, Plaintiffs cannot establish taxpayer standing to assert their Establishment Clause claim.3 The analysis necessarily starts with the long-established premise that taxpayers as taxpayers do not have standing to challenge the constitutionality of a statute or government practice:
In Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers. Flast v. Cohen, 392 U.S. 83, 85 (1968). In Flast, the Court announced a two-part “nexus” test to determine “the standing of individuals who assert only the status of federal taxpayers and who challenge the constitutionality of a federal spending program:”
3 The Prospective Parent Plaintiffs assert taxpayer standing as an alternate basis for their Establishment Clause Claim and not as a basis for their Equal Protection Claim. Plaintiff Jennifer Ludolph relies solely on taxpayer standing as a basis for her claims.
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The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, s 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, s 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.
392 U.S. at 102-03.
In Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007), the
Supreme Court acknowledged the narrow exception to the general rule against
taxpayer standing announced in Flast: “In Flast, the Court carved out a narrow
exception to the general constitutional prohibition against taxpayer standing.” 551
U.S. at 602. The Court in Hein noted that “[t]he expenditures challenged in Flast []
were funded by a specific congressional appropriation and were disbursed to private
schools (including religiously affiliated schools) pursuant to a direct and unambiguous
congressional mandate.” 551 U.S. at 604. In Hein, plaintiffs challenged the use of
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federal funds to pay for conferences held or speeches given as part of President
George W. Bush’s “Faith-Based and Community Initiatives” program that “used
‘religious imagery’ and ‘praised the efficacy of faith-based programs in delivering
social services.’” 551 U.S. at 592. The Supreme Court held that because the
conferences and speeches were paid for out of general Executive branch
appropriations, and not specific congressional enactments, the case fell outside the
narrow exception created in Flast:
The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.
551 U.S. at 605 (footnote omitted). In Hein, the Supreme Court distinguished its
earlier decision in Bowen v. Kendrick, 487 U.S. 589 (1988):
Bowen v. Kendrick, 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), on which respondents rely heavily, is not to the contrary. In that case, we held that the taxpayer-plaintiffs had standing to mount an as-applied challenge to the Adolescent Family Life Act (AFLA), which authorized federal grants to private community service groups including religious organizations. The Court found “a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing
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and spending power,” notwithstanding the fact that “the funding authorized by Congress ha[d] flowed through and been administered” by an Executive Branch official. Id., at 620, 619, 108 S.Ct. 2562.
But the key to that conclusion was the Court's recognition that AFLA was “at heart a program of disbursement of funds pursuant to Congress' taxing and spending powers,” and that the plaintiffs' claims “call[ed] into question how the funds authorized by Congress [were] being disbursed pursuant to the AFLA's statutory mandate.” Id., at 619–620, 108 S.Ct. 2562 (emphasis added). AFLA not only expressly authorized and appropriated specific funds for grantmaking, it also expressly contemplated that some of those moneys might go to projects involving religious groups. See id., at 595–596, 108 S.Ct. 2562; see also id., at 623, 108 S.Ct. 2562 (O'Connor, J., concurring) (noting the “partnership between governmental and religious institutions contemplated by the AFLA”). Unlike this case, Kendrick involved a “program of disbursement of funds pursuant to Congress’ taxing and spending powers” that “Congress had created,” “authorized,” and “mandate[d].” Id., at 619–620, 108 S.Ct. 2562.
551 U.S. at 606-07 (footnote omitted).
Intervenor Defendants direct the Court’s attention to Ariz. Christian Sch.
Tuition Org. v. Winn, 563 U.S. 125 (2011), where the Supreme Court reiterated the
narrowness of the Flast holding and again focused the analysis on whether plaintiff
could point to a specific legislative apportionment for religious purposes. Winn
involved the issue of whether certain Arizona tuition tax credits, which allowed
Arizona taxpayers to make contributions to school tuition organizations (“STOs”) and
to receive up to a $500 tax credit for the contribution, violated the Establishment
Clause. 563 U.S. at 129. A group of Arizona taxpayers challenged the tax credit
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based upon the allegation that “STOs use these contributions to provide scholarships to students attending private schools, many of which are religious.” Id. The Court noted “at the outset that . . . Flast’s holding provides a narrow exception to the general rule against taxpayer standing.” 563 U.S. at 138. The Court then reiterated Flast’s “two conditions” for taxpayer standing: “The first condition is that there must be a ‘logical link’ between the plaintiff's taxpayer status ‘and the type of legislative enactment attacked.’” 563 U.S. at 138 (quoting Flast, 392 U.S. at 102). The Court noted that “[i]n the decades since Flast, the Court has been careful to enforce this requirement,” citing Hein, supra, as an example where the Court found “no standing under Flast to challenge federal executive actions funded by general appropriations.” Winn, 563 U.S. at 139. The second Flast condition as explained in Winn “is that there must be ‘a nexus’ between the plaintiff’s taxpayer status and ‘the precise nature of the constitutional infringement alleged.’” 563 U.S. at 139 (quoting Flast, 392 U.S. at 102). “This condition was deemed satisfied in Flast based on the allegation that Government funds had been spent on an outlay for religion in contravention of the Establishment Clause.” Winn, 563 U.S. at 139. The Court in Winn explained Flast’s ultimate rationale as follows:
After stating the two conditions for taxpayer standing, Flast considered them together, explaining that individuals suffer a particular injury for standing purposes when, in violation of the Establishment Clause and by
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means of “the taxing and spending power,” their property is transferred through the Government's Treasury to a sectarian entity. 392 U.S., at 105–106, 88 S.Ct. 1942. As Flast put it: “The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power.” Id., at 106, 88 S.Ct. 1942. Flast thus “understood the ‘injury’ alleged in Establishment Clause challenges to federal spending to be the very ‘extract[ion] and spen[ding]’ of ‘tax money’ in aid of religion alleged by a plaintiff.” DaimlerChrysler, 547 U.S., at 348, 126 S.Ct. 1854 (quoting Flast, 392 U.S., at 106, 88 S.Ct. 1942). “Such an injury,” Flast continued, is unlike “generalized grievances about the conduct of government” and so is “appropriate for judicial redress.” Id., at 106, 88 S.Ct. 1942.
Winn, 563 U.S. at 139-40. Ultimately, the Supreme Court found no taxpayer standing
in Winn.
In Murray v. United States Dept of Treasury, 681 F.3d 744 (6th Cir. 2012), the
Sixth Circuit summarized Supreme Court precedent on the issue of taxpayer standing,
discussing Flast, Hein, Bowen, among others as well as the Sixth Circuit’s decisions
in Pedreira v. Kentucky Baptist Homes for Children, Inc., 579 F.3d 722 (6th Cir.
2009) and American Atheists, Inc. v. City of Detroit Downtown Development
Authority, 567 F.3d 278 (6th Cir. 2009), distilling from these cases the proposition
that “the Flast exception does not extend to suits challenging executive-branch
expenditures of unearmarked funds.” Murray, 681 F.3d at 751 (quoting American
Atheists, 567 F.3d at 286). The Sixth Circuit in Murray, again drawing on this same
precedent, stated that “a taxpayer-plaintiff has standing to challenge an executive-
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branch disbursement of funds only if the appropriating statute expressly contemplates the disbursement of [government] funds to support religious groups or activities.” Id. The Sixth Circuit declined the invitation to “adopt the reasonable inference” as suggested by the plaintiffs, that Congress’s general awareness of the fact that some of the funds disbursed by the Treasury Secretary following the acquisition by the Treasury Department of a controlling stake in a financially troubled entity that was known to be selling financial instruments specifically targeted toward compliance with Sharia law, was sufficient to find that the challenged legislation contemplated support for religious activities. Id. at 751-52.
Plaintiffs urge the Court to find taxpayer standing relying on Pedreira, supra. In Pedreira, the Kentucky Baptist Homes for Children, Inc. (“KBHC”), a sectarian organization providing placement resources for at-risk and abused and neglected children, received approximately $12.5 million per year from the State of Kentucky. 579 F.3d at 725. In Pedreira, the Sixth Circuit rejected plaintiffs’ assertion of federal taxpayer standing based upon “general [federal] funding provisions for childcare:”
These statutes are general funding provisions for childcare; they do not contemplate religious indoctrination. The plaintiffs respond that the statutes do not forbid unconstitutional uses of these funds. A failure to prohibit unconstitutionality, however, does not equate to an unconstitutional congressional funding mandate. 579 F.3d at 731. The Sixth Circuit did find that plaintiffs had state taxpayer standing
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based upon a finding “that the Kentucky legislature also appropriated sums of money specifically to KBHC.” 579 F.3d at 731. The Sixth Circuit found that this “explicit legislative authorization” for “tax-funded aid” to a religious organization evidenced a sufficient nexus between the state legislative actions and the alleged constitutional violations. Id. at 732. Thus, Pedreira is distinguishable and in fact supports a finding of no taxpayer standing here because the explicit legislative directive absent here was demanded there and was found only in the state legislative enactment that expressly “appropriated sums of money specifically to KBHC.”4
The teaching of this line of post-Flast Supreme Court precedent is that Flast is alive and well and that if the legislative enactment at issue does not expressly authorize the religiously-challenged expenditure at issue, the Flast test will not be met. Here, Plaintiffs assert that “[f]unds for child placing agencies come largely from appropriations made by the Michigan Legislature for foster care payments and the
4 In Pedreira, the Sixth Circuit suggested that the standard for establishing state taxpayer standing was different from the Flast “nexus” standard and only required a showing of “pocketbook” injury. 579 F.3d at 731. However, as the Sixth Circuit realized in a subsequent decision in Pedreira, “in Winn the Supreme Court held that state-taxpayer standing requires a plaintiff to establish the same two elements required for federal-taxpayer standing.” Pedreira v. Sunrise Children’s Services, Inc., 802 F.3d 865, 870 (6th Cir. 2015) (citing Winn, 131 S. Ct. at 1445-47). Although the Sixth Circuit saw “no occasion to revisit [its] holding in Pedreira I,” it did acknowledge that both Flast conditions must exist in order for a plaintiff to establish state taxpayer standing. Id.
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Child Care Fund, which must be spent according to relevant child welfare statutes.” (Pls.’ Resp. 12-13.) In support of this assertion, Plaintiffs refer by way of example to the “FY2018 Appropriations Act,” which Plaintiffs allege “made specific appropriations for foster care payments and Child Care Fund.” (Pls.’ Resp. 13 n. 14.) Plaintiffs assert that “DHHS is empowered to promulgate regulations and oversee spending under the Child Care Fund.” (Id.) Plaintiffs also refer to paragraphs 38-50 and 76-77 of their Complaint. Absent, however, from any of this supporting evidence is any indication that the state legislature specifically directed that the funds they were appropriating to DHHS to carry out its mission with respect to the State’s foster care system be used to further or carry out any religious purpose. Indeed, at the hearing on the motions to dismiss, counsel for the Plaintiffs conceded that the funding statute at issue here says nothing about religion. ((ECF No. 48, Transcript of July 12, 2018 Hearing (“Hr’g Tr.”) 53:1-10.) There is no legislative mandate or requirement that the DHHS contract with any particular child placing agency and there is no express legislative mandate that funds appropriated be used to support any particular religious agenda.
Plaintiffs have not identified an express legislative appropriation directing that funds be used to further or carry out any religious purpose. Plaintiffs have failed to establish taxpayer standing. Accordingly, the Court DISMISSES WITH PREJUDICE
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the claims of Plaintiff Jennifer Ludolph against the Defendants. As discussed supra, the Prospective Parent Plaintiffs have established general Article III standing at this stage of the proceedings with respect to both their Equal Protection and Establishment Clause claims, and their standing under Article III is unaffected by the Court’s ruling on taxpayer standing.
C. The Prospective Parent Plaintiffs Have Plausibly Alleged an Establishment Clause Claim
The Plaintiffs and the State Defendants appear to agree that in analyzing Plaintiffs’ Establishment Clause Claim the Court should apply the familiar test established in Lemon v. Kurtzman, 403 U.S. 602 (1971). Intervenor Defendants argue that the Lemon test has been “superseded” by Town of Greece v. Galloway, 134 S. Ct. 1811 (2014), in which the Supreme Court interpreted the Establishment Clause with reference to “historical practices and understandings,” dating back to the time of adoption of the First Amendment in analyzing the constitutionality of legislative prayer. 134 S. Ct. at 1819. But the Sixth Circuit has expressly rejected such a notion, observing that “Town of Greece gives no indication that the Court intended to completely displace the endorsement test. . . . it simply explains why a historical view was more appropriate in the case at hand.” Smith v. Jefferson County Bd. of School Com’rs, 788 F.3d 580, 589 (6th Cir. 2015).
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In Smith, “[a] county school board, facing a budget shortfall, abolished its
alternative school and contracted for its students to be educated in the secular,
alternative-school program at a private, Christian school.” Id. at 582. The School
Board paid the private school a total of $1,702,368 over a seven-year period. Id. at
584. Examining the challenged conduct there, the Sixth Circuit cogently explained
the emergence of a “three thread” test for determining whether governmental action
violates the Establishment Clause:
To decide whether a governmental action violates the Establishment Clause, we must weave together three main jurisprudential threads. The first thread is the “Lemon test,” named after the Supreme Court's decision in Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under that test, the action comports with the Establishment Clause only if it satisfies three distinct prongs. First, the activity must “have a secular legislative purpose.” Id. at 612, 91 S.Ct. 2105. Second, “its principal or primary effect must be one that neither advances nor inhibits religion.” Id. Third, it “must not foster ‘an excessive government entanglement with religion.’” Id. at 613, 91 S.Ct. 2105 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)).
The next thread is an “endorsement” analysis, first discussed by Justice O'Connor in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984). As Justice O'Connor intended, Lynch, 465 U.S. at 688, 104 S.Ct. 1355 (O'Connor, J., concurring), the Sixth Circuit “has treated the endorsement test as a refinement or clarification of the Lemon test.” Granzeier v. Middleton, 173 F.3d 568, 573 (6th Cir. 1999); see also, e.g., Satawa v. Macomb Cnty. Rd. Comm'n, 689 F.3d 506, 526 (6th Cir. 2012) (explaining the Sixth Circuit's application of the Lemon test); Am. Civil Liberties Union v. Grayson Cnty., 591 F.3d 837, 844–45 (6th Cir. 2010) (using the Lynch discussion as guidance in applying the Lemon test). Justice O'Connor explained that Lemon's first prong, which
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focuses on the government's purpose, really asks “whether [the] government's actual purpose is to endorse or disapprove of religion.” Lynch, 465 U.S. at 690, 104 S.Ct. 1355 (O'Connor, J., concurring). While the first Lemon prong is subjective, the second is objective. It asks “whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.” Id. If either the purpose or effect of the government activity is to endorse or disapprove of religion, the activity is unconstitutional. Id.
Excessive entanglement—Lemon's third prong—remains relevant. Under Justice O'Connor's test, such entanglement would still be grounds for striking down the activity, even if there is no hint of endorsement or disapproval. See id. at 689, 104 S.Ct. 1355. Since then, however, the Court has “recast Lemon's entanglement inquiry [in the public school context] as simply one criterion relevant to determining a statute's effect.” Mitchell v. Helms, 530 U.S. 793, 808, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000) (plurality opinion) (citing Agostini v. Felton, 521 U.S. 203, 232–33, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997)).
The final jurisprudential thread—most recently seen in Town of Greece v. Galloway, ––– U.S. ––––, 134 S.Ct. 1811, 188 L.Ed.2d 835 (2014), but relevant since Marsh v. Chambers, 463 U.S. 783, 103 S.Ct. 3330, 77 L.Ed.2d 1019 (1983)—involves a historical approach. It takes the view that “it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” Town of Greece, 134 S.Ct. at 1819.
788 F.3d at 586-87.
The Sixth Circuit then analyzed these three “threads” as relevant to the Board’s
conduct and ultimately found no coercion, endorsement, or entanglement. Rejecting
the suggestion that Town of Greece fully displaced the longstanding Lemon test, the
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Sixth Circuit held that, in cases like the one before it “that cannot be resolved by resorting to historical practices, we do not believe that Town of Greece requires us to depart from our pre-existing jurisprudence.” Id. at 588. “Town of Greece gives no indication that the Court intended to completely displace the endorsement test. . . . it simply explains why a historical view was more appropriate in the case at hand.” Id. at 589. Smith does instruct, however, that the Court should at least consider whether historical practice answers the question and, if not, should proceed with its threepronged approach, which includes an analysis of the Lemon factors. “Our inquiry, then, should be threefold. First, does historical practice indicate that the Board's action was constitutionally compliant, regardless of any specific test? Second, did the relationship with Kingswood have the effect of advancing religion—or, in other words, did it objectively convey a message of religious endorsement? Third, did it foster an excessive entanglement of government and religion?” Smith, 788 F.3d at 588.
The Intervenor Defendants cite several articles discussing the “historical partnership” between religious organizations and Michigan’s adoption and foster care system. (ECF No. 19, Intervenor Defs.’ Mot. 6-9, PgID 504-07.) Apart from being matters that the Court cannot consider in its analysis of the facial plausibility of Plaintiffs’ Complaint (which contains no allegations about the significance of such an
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historical partnership), the materials cited by the Intervenor Defendants do not establish the existence of an historical practice in the area of the State’s contractual practices relating to public welfare for wards of the state “that was accepted by the Framers and has withstood the critical scrutiny of time and political change.” Town of Greece, 134 S. Ct. at 1819. Consequently here, and generally outside the context of legislative prayer, “the pure historical approach is of limited utility.” Smith, 788 F.3d at 588. See Bormuth v. County of Jackson, 870 F.3d 494, 504 (6th Cir. 2017) (observing that Marsh v. Chambers, 463 U.S. 783 (1983) “carv[ed] out an exception,” as did Town of Greece in its footsteps, “to the [Supreme] Court’s Establishment Clause jurisprudence” in the context of legislative prayer) (first alteration added). There is no evidence in the Supreme Court’s rulings since Town of Greece “that the historical approach had become the only relevant, or even dominant, mode of analysis,” and this Court declines to displace the Lemon test and apply Town of Greece here in the context of a motion to dismiss. Smith, 788 F.3d at 589.
Before turning to the Lemon test and its relevant variants, it is important to bear in mind that we are analyzing Plaintiffs’ claims at the motion to dismiss stage, which asks only whether the allegations of the Complaint and all reasonable inferences that flow from those allegations, which we must accept as true for now, plausibly allege a claim. Thus, it is critical to our endeavor to understand what the Plaintiffs have
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alleged in their Complaint and what they have not alleged. “Plaintiffs do not challenge the eligibility of religious organizations to receive government contracts to provide social services.” (ECF No. 37, Pls.’ Intervenor Resp. 13, PgID 832.) Rather, Plaintiffs challenge the State’s practice of contracting with child placing agencies and authorizing those agencies to use religious eligibility criteria in the public child welfare system. (Id.) Specifically, Plaintiffs ask the Court “to invalidate the State’s practice of allowing state-contracted, taxpayer-funded child placing agencies to disqualify prospective families headed by same-sex couples based on agencies’ religious beliefs.” (Id.) Plaintiffs do not seek to prevent the State from entering into contracts with faith-based child placing agencies for the provision of child welfare services. Rather, Plaintiffs seek to ensure that the State does so on the same terms that it contracts with secular agencies. (Id. at 13-14, PgID 832-33.) The Plaintiffs have sued the State Defendants, arguing that the State’s practice of permitting statecontracted child placing agencies that perform a state function to use religious criteria to exclude prospective adoptive and foster parents constitutes endorsement and promotion of religion and is prohibited by the Establishment Clause. (Id. at 10, PgID 829.) The Plaintiffs have not sued St. Vincent or any other child placing agency. St. Vincent and the other Intervenor Defendants sought and were granted permission to intervene in this matter only to place their views before the Court. Nor do the
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Plaintiffs directly challenge the constitutionality of PA 53, which created the religious belief exemption on which St. Vincent and other faith-based child placing agencies have been permitted to rely in employing religious criteria in their state-contracted work. The Plaintiffs have sued only the State Defendants who are responsible (in their official capacities) for the implementation of PA 53 and who enter into contracts with child placing agencies to perform adoption and foster care services for Michigan wards of State. These State-sponsored multi-million dollar contracts expressly recognize a child placing agency’s right under PA 53 to refuse to provide services on the basis of their religious beliefs, as relevant here their sincerely held faith-based objection to same-sex marriage. (See, e.g. State Defs.’ Mot. Ex. 1, 2016 Agreement Between DHHS and St. Vincent, § 2.9(e).) Plaintiffs argue that the State’s contracting practices, which are under challenge here, must comport with the Constitution. “A statute or practice must conform to all [applicable constitutional] requirements to survive scrutiny under the Establishment Clause.” Doe v. Porter, 370 F.3d 558, 562 (6th Cir. 2004) (emphasis and alteration added). With this background in mind, the Court turns to the question of whether the Plaintiffs’ Complaint alleges a plausible claim against the State Defendants under the Establishment Clause.
The First Clause of the First Amendment provides that: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
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thereof.” U.S. Const. amend. I. The law applies equally to restrict the power of the states through “the application of the First Amendment to the States by the Fourteenth.” Everson v. Bd. of Ed. of Ewing Twp., 330 U.S. 1, 8 (1947). “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice. It may not be hostile to any religion or to the advocacy of nonreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Epperson v. State of Ark., 393 U.S. 97, 103-04 (1968). “As made applicable to the States through the Fourteenth Amendment, the Clause prohibits government from favoring one religion over another or from favoring religion over irrelegion (or irrelegion over religion).” Freedom from Religion Foundation, Inc. v. City of Warren, Mich., 707 F.3d 686, 691 (6th Cir. 2013). This “principle . . . that government should not prefer one religion to another, or religion to irreligion,” is “at the heart of the Establishment Clause.” Bd. of Educ. of Kiryas Joel Village School Dist. v. Grumet, 512 U.S. 687, 703 (1994).
“The fundamental source of constitutional concern here is that the legislature itself [or the State in practice] may fail to exercise governmental authority in a religiously neutral way.” Kiryas Joel, 512 U.S. at 703 (alteration added). The
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Establishment Clause dispute in this case focuses on the second and third prongs of the Lemon test, as interpreted by the Sixth Circuit in Smith. Thus we ask: (1) whether the State’s implementation of PA 53 has “the primary effect of advancing religion,” i.e. whether “the action convey[s] an objective message that the government [is] endorsing religion,” Smith, 788 F.3d at 589; and (2) whether the State’s implementation of PA 53 “involve[s] an excessive entanglement between church and state.” Id. at 593.
The “endorsement” prong asks “‘whether, irrespective of government’s actual purpose, the practice under review in fact conveys a message of endorsement or disapproval.’” Smith, 788 F.3d at 587 (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring). “If either the purpose or effect of the government activity is to endorse or disapprove of religion, the activity is unconstitutional.” Id. At this stage of the proceedings we ask only if, accepting as true the allegations of the Plaintiffs’ Complaint and all reasonable inferences that flow from those allegations, the Plaintiffs’ Complaint plausibly alleges that the State’s practice of contracting with faith-based child placing agencies, acknowledging that the agencies may use the religious belief exemption provided in PA 53 to turn away same-sex couples, conveys the message that the State endorses the view that opposes same-sex marriage. The answer is yes.
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In paragraphs 38-50 of the Complaint, 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 the subjective purpose of discriminating against those who oppose the view of the faith-based agencies (allegedly demonstrated through the legislative history of PA 53) and objectively endorses the religious view of those agencies that same-sex marriage is wrong, sending a “‘message [to Plaintiffs] that they are outsiders, not full members of the community.’” (Pls.’ State Resp. 19, PgID 651) (quoting Santa Fe Independent School Dist. v. Doe, 530 U.S. 290, 309-10 (2000)). While the State Defendants dispute these facts, we must assume for our present procedural purposes that these allegations are true and that in the face of such facts “an objective observer would conclude that [the State’s implementation of PA 53 through its contracts with child placing agencies] communicates a message of government endorsement of religion, generally, and of [opposition to same-sex marriage] in particular.” Porter, 370 F.3d at 563. The State Defendants argue that PA 53 does not favor one religion over another, but the Establishment Clause prohibits the State from “prefer[ing] one religion to another, or religion to irreligion.” Kiryas Joel, 512 U.S. at 703 (alteration and emphasis added). According to the allegations of Plaintiffs’ Complaint, the Defendants’ implementation of PA 53 favors the views of those opposing same-sex marriage by permitting faith-
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based child placing agencies to discriminate on the basis of their deeply held religious beliefs that reject same-sex marriage.
The State Defendants argue that the State’s implementation of PA 53 has a secular purpose – seeking to alleviate interference with faith-based agencies’ abilities to carry out their religious mission to create the greatest environment for the benefit of the most children. The State Defendants submit that the legislation expressly avoids entanglement by not placing the State Defendants in the position of evaluating the religious or secular merits or demerits of a child placing agency’s reason for declining a case referral. (State Defs. Mot. 16-18, PgID 79-81.) Defendants rely on Corporation of Presiding Bishop of Church of Jesus Christ of Latter Day Saints v. Amos, 483 U.S. 327 (1987), to support the conclusion that “PA 53 and Defendants’ implementation of it have a secular purpose because they seek to “alleviate” interference with faith-based agencies’ ability to define and carry out their religious missions.” (State Defs.’ Mot. 18, PgID 81.) In Amos, the Supreme Court held that section 702 of the Civil Rights Act of 1964, which exempts religious organizations from complying with Title VII’s prohibition against discrimination on the basis of religion, did not amount to “an unlawful fostering of religion.” 483 U.S. at 334-35 (internal quotation marks and citation omitted). The Court noted that it “has long recognized that the government may (and sometimes must) accommodate religious
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practices and that it may do so without violating the Establishment Clause.” Id. at 334. Observing that “[t]here is ample room under the Establishment Clause for “‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference,’” id. at 334 (quoting Walz v. Tax Comm’n, 397 U.S. 664, 669 (1970)), the Court acknowledged that under Lemon, “it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions.” Id. at 335. With regard to the second prong of the Lemon test, the effect of the law in question, the Court observed: “A law is not unconstitutional simply because it allows churches to advance religion, which is their very purpose. For a law to have forbidden “effects” under Lemon, it must be fair to say that the government itself has advanced religion through its own activities and influence.” Id. at 337 (emphasis in original). The authors of the Establishment Clause, the Court recalled, aimed to preclude “sponsorship, financial support, and active involvement of the sovereign in religious activity.” Id. The Court concluded: “Where, as here, government acts with the proper purpose of lifting a regulation that burdens the exercise of religion, we see no reason to require that the exemption comes packaged with benefits to secular entities.” Id. at 338.
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The State Defendants submit that they are “not seeking to advance religion, but to create a provider environment that allows faith-based and non-faith-based CPAs to flourish, for the benefit of children.” (State Defs.’ Mot. 18, PgID 81) (emphasis in original). While Amos certainly stands for the propositions cited, and while the State’s claims regarding purpose may be capable of proof at a later stage of the proceedings, they cannot be credited on a motion to dismiss because they directly contradict the allegations of Plaintiffs’ Complaint, which alleges that the Legislature in adopting PA 53, and the State Defendants’ in implementing PA 53, harbored the impermissible purpose of “authorizing discrimination by those with religious opposition to same-sex couples.” (Pls.’ State Resp. 19, PgID 651.) For purposes of analyzing Plaintiffs’ Establishment Clause claim on this motion to dismiss, the Court must accept the Plaintiffs’ allegations of improper purpose as true. Plaintiffs have sufficiently alleged the State’s improper “endorsement” of religion.5 Moreover, Plaintiffs submit that there are important substantive distinctions regarding Amos, including the facts that the defendants in Amos, the Desert Gymnasium, a nonprofit facility run by the Corporation of the Presiding Bishop of the Church of Jesus Christ
5 The Court notes that Amos, like many of the Establishment Clause cases relied upon by the Defendants, came to the Supreme Court on a summary judgment record. As this Court previously observed, in many respects the Defendants’ motions are premature.
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of Latter-day Saints, and the Corporation, were religious entities associated with the Church. They were not funded by the government, did not enter into contracts with the government to provide governmental services, and were not alleged to have been conducting government functions. The defendants in Amos were religious organizations engaged in their own activities seeking exemptions from generally applicable laws so that they could continue carrying on their own work consistent with their religious beliefs. A very different set of facts from those alleged here.
The entanglement prong asks whether the State’s implementation of PA 53 “fosters an excessive entanglement between the state and religion,” which Plaintiffs argue can occur where as here the State “delegat[es] a governmental function to a religious institution.” Porter, 370 F.3d at 563-64 (citing Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 121 (1982)). “The question presented [in Larkin was] whether a Massachusetts statute [“§ 16C”], which vests in the governing bodies of churches and schools the power effectively to veto applications for liquor licenses within a five hundred foot radius of the church or school, violates the Establishment Clause of the First Amendment or the Due Process Clause of the Fourteenth Amendment.” 459 U.S. at 117. Section 16C provided that: “Premises . . . located within a radius of five hundred feet of a church or school shall not be licensed for the sale of alcoholic beverages if the governing body of such church or school files written objection
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thereto.” Id. The appellee applied for a liquor license and was denied a license on the sole basis of the objection of a church that was within 10 feet of the proposed location. Id. at 118. The Supreme Court acknowledged the three relevant Lemon criteria and observed: “Independent of the first of those criteria, the statute, by delegating a governmental power to religious institutions, inescapably implicates the Establishment Clause.” Id. at 123. The Court acknowledged the “valid secular legislative purpose[]” to “protect[] spiritual, cultural, and educational centers from the ‘hurly-burly’ associated with liquor outlets,” id. at 123, but reasoned that purpose could be accomplished through other means. Id. at 124. The Court focused, however, on the second Lemon prong, finding that because a church’s “power under the statute is standardless, calling for no reasons, findings, or reasoned conclusions[,] [t]hat power may therefore be used by churches to promote goals beyond insulating the church from undesirable neighbors [and] it could be employed for explicitly religious goals . . . .” Id. at 125. Absent “effective means of guaranteeing that the delegated power will be used exclusively for secular, neutral, and nonideological purposes,” the Court found there was potential for advancing the church’s religious purposes. Id. at 125-26 (internal quotation marks and citations omitted). Turning to the third Lemon prong, the Court observed:
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Turning to the third phase of the inquiry called for by Lemon v. Kurtzman, supra, we see that we have not previously had occasion to consider the entanglement implications of a statute vesting significant governmental authority in churches. This statute enmeshes churches in the exercise of substantial governmental powers contrary to our consistent interpretation of the Establishment Clause; “[t]he objective is to prevent, as far as possible, the intrusion of either [Church or State] into the precincts of the other.” 459 U.S. at 126 (quoting Lemon, 403 U.S. at 614) (alterations in original). The Court found that the “fusion of governmental and religious functions” inherent in the delegation violated the Establishment Clause: “The Framers did not set up a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.” Id. at 127. Again in Kiryas Joel, supra, the Supreme Court revisited this issue of the “‘fusion of governmental and religious functions” brought about by legislation that “delegat[es] ‘important, discretionary governmental powers’ to religious bodies, thus impermissibly entangling government and religion.” 512 U.S. at 696-97 (quoting Larkin, 459 U.S. at 126). Kiryas Joel involved a New York statute that carved out a distinct school district for a village (“Kiryas Joel”) of “vigorously religious people” that isolated its members from the larger community, often to the detriment of the “handicapped children” of Kiryas Joel who were unable to benefit from the publiclyfunded schools outside the village that offered special education services. Id. at 691-
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94. In “a good faith effort to solve th[e] unique problem associated with providing special education services to handicapped children in the village,” New York enacted a statute that created a separate school district for Kiryas Joel and “empowered a locally elected board of education to take such action as opening schools and closing them, hiring teachers, prescribing textbooks, establishing disciplinary rules, and raising property taxes to fund operations.” Id. at 693. Before the new district began to operate, plaintiffs filed suit challenging the statute as an unconstitutional establishment of religion. Id. at 694. The New York State Court of Appeals concluded that the “statute's primary effect was an impermissible advancement of religious belief,” that the effect was “purposeful,” and that the statute therefore violated the first and second Lemon prongs. Id. at 695. The dissenting State Court of Appeals judge disagreed, opining that “the new district was created to enable the village’s handicapped children to receive a secular, public-school education; that this was, indeed, its primary effect; and that any attenuated benefit to religion was a reasonable accommodation of both religious and cultural differences.” Id. at 695-96. Relying on Larkin’s “teach[ing] that a State may not delegate its civic authority to a group chosen according to a religious criterion,” id. at 695, the Supreme Court found the statute unconstitutional:
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[W]e are clearly constrained to conclude that the statute before us fails the test of neutrality. It delegates a power this Court has said ranks at the very apex of the function of a State, to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism. It therefore crosses the line from permissible accommodation to impermissible establishment.
512 U.S. at 709-10 (internal quotation marks and citation omitted). In reaching its
conclusion, the Supreme Court took great care to explain:
In finding that Chapter 748 violates the requirement of governmental neutrality by extending the benefit of a special franchise, we do not deny that the Constitution allows the State to accommodate religious needs by alleviating special burdens. Our cases leave no doubt that in commanding neutrality the Religion Clauses do not require the government to be oblivious to impositions that legitimate exercises of state power may place on religious belief and practice. Rather, there is “ample room under the Establishment Clause for ‘benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference,” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 334, 107 S.Ct. 2862, 2867–2868, 97 L.Ed.2d 273 (1987) (quoting Walz v. Tax Comm'n, supra, 397 U.S., at 673, 90 S.Ct., at 1413); “government may (and sometimes must) accommodate religious practices and ... may do so without violating the Establishment Clause.” Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 144–145, 107 S.Ct. 1046, 1051, 94 L.Ed.2d 190 (1987). The fact that Chapter 748 facilitates the practice of religion is not what renders it an unconstitutional establishment. Cf. Lee v. Weisman, 505 U.S. 577, 627, 112 S.Ct. 2649, 2676, 120 L.Ed.2d 467 (1992) (SOUTER, J., concurring) (“That government must remain neutral in matters of religion does not foreclose it from ever taking religion into account”); School Dist. of Abington Township v. Schempp, 374 U.S., at 299, 83 S.Ct., at 1612 (Brennan, J., concurring) (“[H]ostility, not neutrality, would characterize the refusal to provide chaplains and places of worship for prisoners and soldiers cut off by the State from all civilian opportunities for public communion”).
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But accommodation is not a principle without limits, and what petitioners seek is an adjustment to the Satmars' religiously grounded preferences that our cases do not countenance. Prior decisions have allowed religious communities and institutions to pursue their own interests free from governmental interference, see Corporation of Presiding Bishop v. Amos, supra, 483 U.S., at 336–337, 107 S.Ct., at 2868–2869 (government may allow religious organizations to favor their own adherents in hiring, even for secular employment); Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96 L.Ed. 954 (1952) (government may allow public schools to release students during the schoolday to receive off-site religious education), but we have never hinted that an otherwise unconstitutional delegation of political power to a religious group could be saved as a religious accommodation. Petitioners' proposed accommodation singles out a particular religious sect for special treatment, and whatever the limits of permissible legislative accommodations may be, compare Texas Monthly, Inc. v. Bullock, supra (striking down law exempting only religious publications from taxation), with Corporation of Presiding Bishop v. Amos, supra (upholding law exempting religious employers from Title VII), it is clear that neutrality as among religions must be honored. See Larson v. Valente, supra, 456 U.S., at 244–246, 102 S.Ct., at 1683.
512 U.S. at 705-07.
Plaintiffs do not dispute that the government “‘may (and sometimes must)
accommodate religious practices,’” and has often done so within the bounds of the
Establishment Clause. Amos, supra, 483 U.S. at 334 (1987) (quoting Hobbie v.
Unemployment Appeals Comm'n of Fla., 480 U.S. 136 (1987)). But as the Supreme
Court did in Kiryas, the Plaintiffs distinguish the cases relied upon by Defendants,
including Amos, because those cases involved exemptions granted to religious
institutions “to pursue their own interests free from governmental interference,” not
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to carry out the duties of government according their own religious beliefs. Kiryas Joel, 512 U.S. at 706.
Plaintiffs here argue that the State Defendants’ delegation of public child welfare services to faith-based child placing agencies “with permission to use religious eligibility criteria violates the Establishment Clause.” (Pls.’ Resp. to State Defs.’ Mot. 16, PgID 648.) Defendants are correct, and in fact Plaintiffs concede, that the Establishment Clause does not prohibit the government from entering into contracts with religious organizations empowering them to provide social services. (ECF No. 37, Pls.’ Resp. to Intervenor Defs.’ Mot. 13, PgID 832.) But, as Plaintiffs clarify, they do not “challenge the eligibility of religious organizations to receive government contracts to provide social services; rather, Plaintiffs challenge the use of religious eligibility criteria in the public child welfare system.” (Id.) It is true that an individual cannot be denied the right hold public office because of his religious beliefs, and a religious organization cannot be precluded from participating in the provision of government services solely because of its religious beliefs. But, in the case of an individual or an institution, the reverse is not true:
It is true that religious people (or groups of religious people) cannot be denied the opportunity to exercise the rights of citizens simply because of their religious affiliations or commitments, for such a disability would violate the right to religious free exercise, see McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978), which the First
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Amendment guarantees as certainly as it bars any establishment. But McDaniel, which held that a religious individual could not, because of his religious activities, be denied the right to hold political office, is not in point here. That individuals who happen to be religious may hold public office does not mean that a State may deliberately delegate discretionary power to an individual, institution, or community on the ground of religious identity. If New York were to delegate civic authority to “the Grand Rebbe,” Larkin would obviously require invalidation (even though under McDaniel the Grand Rebbe may run for, and serve on, his local school board), and the same is true if New York delegates political authority by reference to religious belief. Where “fusion” is an issue, the difference lies in the distinction between a government's purposeful delegation on the basis of religion and a delegation on principles neutral to religion, to individuals whose religious identities are incidental to their receipt of civic authority.
Kiryas, 512 U.S. at 698-99.
Intervenor Defendants distinguish Larkin and Kiryas Joel by reiterating their
argument that Plaintiffs have failed to allege state action and each of those cases
involved a state actor. (Intervenor Defs.’ Reply at 11, n. 9.) The Court rejects the
Defendants’ state action argument as discussed at length infra in Section III(E). The
State Defendants do not otherwise substantively address Larkin and Kiryas Joel at all
in their Reply. Plaintiffs argue that the State Defendants have delegated a public
function to religious entities and are permitting (if not authorizing through the
contractual acknowledgment of the PA 53 exemption in the child placing agency
contracts) those entities to employ religious criteria in carrying out that public
function, in violation of the Establishment Clause. At oral argument, Counsel for the
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State Defendants distinguished Larkin as having created a “limited exception” for the situation in which the government delegates an exclusive government function. But what Larkin actually said, without limitation, was that “delegating a governmental power to religious institutions inescapably implicates the Establishment Clause.” 459 U.S. at 123. The Plaintiffs allege that “[b]y statute, the State is responsible for the care of the children who are in Michigan’s foster care system,” and that the State has “delegated its statutory child-welfare responsibilities to private agencies.” (Compl. ¶ 4.) There is nothing before this Court on these motions to dismiss to support the State Defendants’ counsel’s statements at the hearing that adoption and foster care services are not sufficiently “exclusive” governmental functions – in fact we know very little about how these child placing agencies actually operate in carrying out their contractual duties or the actual scope of those duties in practice. The Plaintiffs allege that the State Defendants could not turn away a same-sex couple on the basis of religious objections yet they acknowledge that they are permitting their delegated agencies, carrying out a State function, to do exactly what the Constitution forbids them to do. (Compl. ¶ 9.) The State Defendants submit that their actions are constitutionally permissible because they are merely attempting to “remain neutral” by allowing the faith-based agencies to carry out their contractual duties based upon their religious beliefs. The State Defendants submit that this practice is supported by
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the secular need to provide the greatest availability of families for the State’s wards.
But these submissions directly contradict the allegations of Plaintiffs’ Complaint
which claim otherwise. The child placing agencies are, in many ways, the gateway for
a family seeking to adopt or foster a child into Michigan’s adoption and foster care
system. The scope of their duties, and hence any “government exclusivity” of the
functions they perform, must be the subject of further discovery. For purposes of
analyzing Plaintiffs’ Establishment Clause claim, the Court must accept the
allegations of the Complaint as true and such allegations surely “implicate” the
Establishment Clause and plausibly suggest “excessive entanglement” such that the
Court will allow Plaintiffs’ Establishment Clause claim to proceed further.6
6 The Defendants argue strenuously that the Court should rely on an unpublished 2012 opinion from another court in this District, Brent v. Wayne County Dept of Human Servs., No. 11-10724, 2012 WL 12877988 (E.D. Mich. Nov. 15, 2012), to conclude that St. Vincent and the other child placing agencies are not state actors and that foster and adoption services for the wards of the State are not the exclusive function of the State. In Brent, Judge Julian Abele Cook was considering the very different issue, not before this Court, of whether the private entity defendants sued there, which provided contractual services for the State, could be considered state actors for purposes of liability under § 1983. Plaintiffs here have not sued any private child placing agencies. But more importantly, the Sixth Circuit recently reversed this aspect of Judge Cook’s November 15, 2012 Opinion and Order in Brent v. Wayne County Department of Human Services, __F.3d__, 2018 WL 4016607, at *7-8 (6th Cir. Aug. 23, 2018) (concluding that “plaintiffs have alleged enough facts to plausibly state that Methodist and the Children’s Center are state actors”). Defendants were eager to compare themselves to the “foster care agencies” deemed not state actors by the district court in Brent, (see, e.g. Intervenor Defs.’ Mot. 11-12, PgID 508-09), and will now have to contend with the Sixth Circuit’s published decision in Brent.
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D. The Prospective Parent Plaintiffs Have Plausibly Alleged an Equal Protection Claim “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1, cl. 4.
“The Equal Protection Clause of the Fourteenth Amendment . . . is essentially a direction that all persons similarly situated should be treated alike.” City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “[T]he courts have themselves devised standards for determining the validity of state legislation or other official action that is challenged as denying equal protection.” Id. at 439-40. The Sixth Circuit has not recognized sexual orientation as a suspect classification and thus Plaintiffs’ Equal Protection claim “is governed by rational basis review.” Davis v. Prison Health Servs., 679 F.3d 433, 438 (6th Cir. 2012).
Plaintiffs allege in their Complaint that PA 53, and the State Defendants’ implementation of PA 53, is animated by disapproval of, or opposition to, same-sex marriage. The Defendants argue that the secular purpose of PA 53, which is stated in the text of PA 53, is that “[h]aving as many possible qualified adoption and foster parent agencies in this state is a substantial benefit to the children of this state who are in need of these placement services. . . .” (Mich. Comp. Laws § 722.124e, Sec. 14e(1)(c).) The State Defendants submit that “the State’s interest is to find as many
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families as possible for children,” and “to achieve the policy of casting the net as wide as it can, the State has chosen to continue its long-time and historical practice of contracting with faith-based and as well as secular child placement agencies. . . . [a]nd the legislature has recognized that keeping the CPA network broad and diverse results in the recruitment of more families which benefits all children in the State’s care.” (Hr’g Tr. 10:6-7, 10-13, 16-19.) The State Defendants submit that this stated purpose, which is set forth in the enacted legislation itself, is judicially noticeable on a motion to dismiss. The Plaintiffs’ Complaint directly contradicts the rationality of this alleged secular purpose, and alleges that allowing faith-based agencies to turn away same-sex couples actually “exacerbates the shortage” of qualified families who are available to adopt or foster and “means that some children may be denied the family that is best matched to meet their individual needs.” (Compl. ¶¶ 55-56.)
As stated supra in the Court’s discussion of Plaintiffs’ Establishment Clause claim, at this motion to dismiss stage the Court must accept the allegations of Plaintiffs’ Complaint, and all reasonable inferences that flow from those factual allegations, as true and cannot credit the contradicting evidence or statements proffered by the Defendants at this point. Defendants argue, however, that in the case of rational basis review, the Court cannot question the State’s claimed purpose and therefore cannot credit the allegations of the Complaint for purposes of the Equal
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Protection analysis. Defendants are correct that this Court’s review on a rational basis challenge is highly deferential. They are incorrect, however, in suggesting that the Legislative purpose is unassailable on rational basis review.
“[A] classification neither involving fundamental rights nor proceeding along suspect lines is accorded a strong presumption of validity.” Heller v. Doe, 509 U.S. 312, 319 (1993). “[R]ational-basis review in equal protection analysis ‘is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.’” Id. (quoting FCC v. Beach, 508 U.S. 307, 313 (1993)). “[A] classification must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Id. at 320 (internal quotation marks and citation omitted). “A State, moreover, has no obligation to produce evidence to sustain the rationality of a statutory classification. [A] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Id. (internal quotation marks and citation omitted). “[T]he burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Id. (internal quotation marks and citation omitted). And in this last statement, Supreme Court jurisprudence establishes that a stated legislative purpose is not unassailable. Admittedly, the challenger’s burden remains high: “Although parties challenging legislation under the
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Equal Protection Clause may introduce evidence supporting their claim that it is
irrational, ‘they cannot prevail so long as it is evident from all the considerations
presented to [the legislature], and those of which we may take judicial notice, that the
question is at least debatable.’” Minnesota v. Clover Leaf Creamery Co., 449 U.S.
456, 464 (1981) (quoting United States v. Carolene Products Co., 304 U.S. 144, 153-
54 (1938)) (alteration in original). “Where there was evidence before the legislature
reasonably supporting the classification, litigants may not procure invalidation of the
legislation merely by tendering evidence in court that the legislature was mistaken.”
Clover Leaf, 449 U.S. at 464. The Sixth Circuit has stated the following rational basis
test:
The Equal Protection Clause of the Fourteenth Amendment “protects against invidious discrimination among similarly-situated individuals or implicating fundamental rights.” Scarbrough v. Morgan Cnty. Bd. of Educ., 470 F.3d 250, 260 (6th Cir. 2006). Because this court has not recognized sexual orientation as a suspect classification, Davis's claim is governed by rational basis review. Id. at 261. Under this test, a “‘plaintiff may demonstrate that the government action lacks a rational basis . . . either by negativing every conceivable basis which might support the government action, or by demonstrating that the challenged government action was motivated by animus or ill-will.’” Id. (quoting Warren v. City of Athens, 411 F.3d 697, 711 (6th Cir. 2005)). We have previously held that “the desire to effectuate one's animus against homosexuals can never be a legitimate governmental purpose, [and] a state action based on that animus alone violates the Equal Protection Clause.” Stemler v. City of Florence, 126 F.3d 856, 873–74 (6th Cir. 1997).
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Davis, 679 F.3d at 438. In Davis, the Sixth Circuit held that plaintiff had “alleged facts that, taken as true, state a plausible claim that the defendants” acted because of an anti-gay animus and concluded that plaintiff “deserves a shot at additional factual development, which is what discovery is designed to give him.” Id. at 438, 440. Here, Plaintiffs assert that PA 53 was passed as a direct effort to oppose same-sex couples and to appease the anti-same-sex objections of certain legislators. (Compl. ¶¶ 38-46.) Plaintiffs argue that the stated Legislative purpose for PA 53 contained in the statute, i.e. to increase the likelihood that greater permanent placements could be achieved through allowing faith-based agencies to turn away same-sex couples, is completely irrational and that in fact the loss of potentially qualified same-sex couples exacerbates that shortage. And in fact, according to Defendants, the Legislature operated under the assumption that the faith-based agencies would shutter operations if they were not granted the religious belief exemption and that this would result in a devastating shortage of agencies to do the State’s work and harm to the State’s wards. Plaintiffs submit, however, that there is good reason to question the base rationality of those assumptions. See, e.g., Fulton v. City of Philadelphia, __F. Supp. 3d__, 2018 WL 3416393, at *6-7 (E.D. Pa. July 13, 2018) (finding that closure of Catholic Social Services “had little or no effect on the operation of Philadelphia’s foster care system”), injunction pending appeal denied by Fulton v. City of Philadelphia, Pa.,
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__S.Ct.__, 2018 WL 4139298 (Mem) (Aug. 30 2018). Plaintiffs submit that “there is no basis in reality” for the speculation that the closing of a faith-based agency will reduce the number of families available for Michigan’s children. (Pls.’ Intervenor Resp. 17, PgID 836.) “[E]ven the standard of rationality . . . must find some footing in the realities of the subject addressed by the legislation.” Heller, 509 U.S. at 321. Although their burden is admittedly high, Plaintiffs are entitled to an opportunity to conduct discovery to support their claim that the State’s practice of continuing to contract with faith-based agencies that invoke PA53’s religious belief protection to turn away same-sex couples lacks a rational basis and to further develop their Equal Protection claim.
E. The Prospective Parent Plaintiffs Have Adequately Alleged State Action
As a general overarching point, Defendants argue that Plaintiffs have failed to adequately allege state action, a necessary element of their constitutional claims in this action. For example, Intervenor Defendants point out that every case on which Plaintiffs rely in support of their request for standing based on stigmatic harm involves the actual affirmative conduct of a state actor. (ECF No. 41, Intervenor Defs.’ Reply 8-9, PgID 866-67). Here, according to the Defendants’ characterization of the Plaintiffs’ Complaint, the stigmatic harm allegedly flows from the private child
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placing agencies refusal to screen same-sex couples and referring them instead to other non-faith-based child placing agencies. According to the Intervenor Defendants, Plaintiffs have cited no case of “stigmatic harm” that involves a state actor passively “allowing” a private party with whom it has a contract to refuse to work with an individual or entity based on religious objections. Rather, Intervenor Defendants assert, in each case relied upon by Plaintiffs in support of their claim of stigmatic harm the plaintiff alleges that the actions of a government actor, not a private party, caused the stigma. For example, the Intervenor Defendants argue, Heckler v. Matthews, 465 U.S. 728 (1984) involved a challenge to statutory pension offsets that required the reduction of social security spousal benefits by amounts of certain federal or state government pensions received by the social security applicant. Id. at 732. Parsons, supra, involved the actions of law enforcement officers and the stigmatizing effects of a report issued by the DOJ. 801 F.3d at 705-06. Obergefell v. Hodges, 135 S. Ct. 2584 (2015) involved challenges to state constitutional provisions defining marriage as a union between one man and one woman and the claims were filed against the state officials responsible for enforcing those laws. 135 S. Ct. at 2593. Moss, supra, was a suit under section 1983 challenging the actions of a public school district that allowed students to receive academic credits for off-campus religious instruction offered by private educators. 683 F.3d at 601. And finally, Intervenor
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Defendants argue, Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012), was an action by a black Muslim against state election officials seeking to preclude their enforcement of a proposed amendment to the Oklahoma Constitution. (Intervenor Defs.’ Reply 9, n. 7, PgID 867.) The Intervenor Defendants point out that “Plaintiffs concede” that their Complaint does not allege that St. Vincent or other child placing agencies are state actors. (Id. at PgID 861.)
Similarly, the State Defendants assert that “Plaintiffs are challenging the decisions of private CPAs, not the State.” (State Defs.’ Mot. 20, PgID 83.) The State Defendants then argue that the Plaintiffs must satisfy the test for establishing that child placing agencies are “state actors” for purposes of the conduct complained of in Plaintiffs’ Complaint. The State Defendants argue that Plaintiffs cannot satisfy the public function test, the state compulsion test, or the symbiotic relationship test that govern this issue. (Id.) In their Reply, the State Defendants insist that because the child placing agencies “are not state actors, Plaintiffs’ claims fail as a matter of law.” (ECF No. 30, State Defs.’ Reply 4, PgID 670.)
As discussed supra at note 6, the Defendants’ assertions regarding the private party status of the child placing agencies is at a minimum undermined, if not foreclosed, by the Sixth Circuit’s recent decision in Brent. But even apart from Brent, the Plaintiffs in this case have not sued any child placing agencies. Defendants
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stubbornly, and inappropriately, insist on rewriting the Plaintiffs’ Complaint. Defendants’ argument ignores the fact that these Plaintiffs did not file their claims against St. Vincent or any other child placing agency. They filed their claims against two state officials acting in their official capacities. Plaintiffs allege that “the State caused [their] injuries by authorizing and failing to prevent the agencies’ discrimination in the performance of State contracts.” (ECF No. 28, Pls.’ State Resp. 2, PgID 634.) Plaintiffs also allege that their injuries “were caused by the State Defendants’ practice of permitting state-contracted, taxpayer-funded child placing agencies to use religious criteria to turn away prospective foster and adoptive parents.” (ECF No. 37, Pls.’ Resp. to Intervenor Defs.’ Mot. 7, PgID 826.)
In support of their state action argument, Defendants rely primarily on Blum v. Yaretsky, 457 U.S. 991 (1982), in which the Supreme Court discussed the circumstances under which the actions of a private party can be attributed to the State.7 In Blum, the plaintiffs, a group of Medicaid patients residing in various private nursing homes, challenged medically-based decisions made by the nursing homes in
7 Before addressing the issue of state action, which the Supreme Court found lacking, the Court in Blum addressed the issue of standing, finding that the nursing home residents facing an imminent transfer to a lower level care facility, and a diminution therefore of benefits, had standing to sue the State agencies. As Blum makes clear, Defendants’ “state action” argument is more appropriately addressed as a merits argument rather than a standing argument. In either case, the result is the same and state action has been sufficiently alleged here.
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which they resided to transfer patients without notice and an opportunity to be heard. 457 U.S. at 993. These nursing homes were directly reimbursed by the State, with funds received through the Medicaid program, for the care provided to their residents. Id. at 994. Transfer decisions were made by utilization review committees (“URCs”) established by each nursing home. Id. If a URC determines that a transfer is necessary, either for more or less intensive care, “it must notify the state agency responsible for administering the State’s Medicaid assistance.” Id. at 995. The plaintiffs in Blum challenged decisions made by their institutions, without notice to them and an opportunity to be heard, to transfer them to facilities providing a lower level of care. Following administrative hearings, “state social service officials affirmed the decision to discontinue benefits unless respondents accepted a transfer to an HRF providing a reduced level of care.” Id. Plaintiffs filed suit against the Commissioners of the New York Department of Social Services and the Department of Health, arguing that the transfers violated the Due Process Clause of the Fourteenth Amendment. Id. at 996. The district court certified a class, issued a preliminary injunction restraining the defendants from reducing or terminating Medicaid benefits without notice and the right to an evidentiary hearing, and ultimately established guidelines for the substantive issues required to be addressed in any such evidentiary hearing. Id. at 997-98. The Second Circuit affirmed and the United States Supreme
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Court “granted certiorari to consider the Court of Appeals’ conclusions about the nature of state action.” Id. at 998.
The Supreme Court reversed, holding that although the complaint named state actors, the “gravamen of the plaintiff’s complaint” challenged the private medical decisions of physicians and physician committees, not any state regulations or procedures:
[R]espondents are not challenging particular state regulations or procedures, and their arguments concede that the decision to discharge or transfer a patient originates not with state officials, but with nursing homes that are privately owned and operated. Their lawsuit, therefore, seeks to hold state officials liable for the actions of private parties, and the injunctive relief they have obtained requires the State to adopt regulations that will prohibit the private conduct of which they complain. 457 U.S. at 1003. Here Plaintiffs are challenging a specific state procedure – the State’s procedure of contracting with faith-based child placing agencies that discriminate on the basis of sexual orientation. The “gravamen” of Plaintiffs’ Complaint is not the purely private decisions of the faith-based agencies in turning them away. Rather Plaintiffs challenge the actions of Defendant state officials in entering into contracts for the provision of state-contracted services, expressly acknowledging and accepting that certain faith-based agencies may elect to discriminate on the basis of sexual orientation in carrying out those state-contracted services, conduct that the Defendants
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concede the State could not take itself. (“If the government had said . . . we will refer you elsewhere because of your sexual orientation, I would not be standing up here today, Your Honor, arguing that there’s no stigma. That would be an entirely different case.”) (Hr’g Tr. 100:18-23). In view of the Sixth Circuit’s recent decision in Brent, supra, there is at least a question whether the faith-based agencies could make this same distinction today. But even apart from Brent, the cases that Defendants have relied upon in arguing the absence of state action here do not persuade the Court.
Blum is not controlling here. As the Sixth Circuit clearly stated in Paige v. Coyner, 614 F.3d 273, 279-80 (6th Cir. 2010), Blum has been applied in this Circuit only in the context of a § 1983 action against a private party and “Blum’s tests are limited to suits where the private party is the one allegedly responsible for taking the constitutionally impermissible action.” Id. at 280. Under Blum the relevant question is whether the state “has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Blum, 457 U.S. at 1004. “Because the state actors in Blum took no action themselves, the Supreme Court necessarily had to determine whether the state should be obligated to shoulder the blame for solely private action.” Coyner, 614 F.3d at 280 (emphasis in original). Here, the Plaintiffs’ allegations suggest that without the State Defendants’ practice of entering into contracts that permit the faith-based
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agencies to decline to work with same-sex couples, the faith-based agencies would be unable to turn away same sex couples. “[The State Defendants] could thus be liable not because [the decision to turn away a same sex couple] itself was state action, but because a jury might find that the [decision to turn away a same sex couple] was a reasonably foreseeable consequence of the action taken by [the State Defendants].” 614 F.3d at 280. Indeed, according to Intervenor Defendants, the State’s practice of permitting the faith-based agencies to exercise their faith-based religious exemption is the sole factor enabling them to turn away same-sex couples – and without the State’s practice, they claim, they will be forced to close. As much as Defendants wish to characterize the Plaintiffs’ Complaint as one seeking to hold purely private parties liable as state actors, that is not the “gravamen” of the Complaint that has been pled.
Defendants also urge the Court to consider the persuasive value of Lown v. Salvation Army, Inc, 393 F. Supp. 2d 223 (S.D.N.Y. 2005), in which the court relied on Blum to determine that the City of New York and certain state officials were not responsible for the Salvation Army’s (a private entity receiving significant public funding) allegedly discriminatory employment practices. In reaching this conclusion, the court in Lown also relied on another case that Defendants urge this Court to consider, Rendell-Baker v. Kohn, 457 U.S. 830 (1982). But both Lown and RendellBaker involved private party defendants who received substantial public funding and
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the decisions in both cases finding no state action turned on the absence of any

allegation or evidence of the state’s influence or involvement in the decisions of those

private parties. In trying to align themselves with cases of this persuasion, the State

Defendants assert that the Court must appreciate that the process of placing a child

through the State adoption system involves a “two-step” process, and that the alleged

discriminatory conduct at issue in this case occurs in the first of those two steps, in

which the State claims it has no involvement:

State Defs.’ Counsel: Right. Just to explain the referral process. The State does not go forward with any adoption or foster care service until it accepts a referral of a particular child from the State. Once it accepts that referral, the agency is absolutely bound by that nondiscrimination provision that you just read including the prohibition against discrimination based on sexual orientation.

*

*

*

State Defs.’ Counsel: It’s two separate processes. You’ve got the recruitment process where the CPA tries to develop a pool of families that would be suitable foster care or adoption providers and that is something the CPA does on its own.

The Court: On its own, but can the CPA, in building up their roster, say the roster is only going to include people that adhere to our religious beliefs?

State Defs.’ Counsel: Yes, they can. Because where the State gets involved is only when that child referral is made. And if the agency doesn’t have a child – or I’m sorry, a family to immediately place the child, they can decline it. And if they do, then they can accept it but they have a family they already know they’re working with. It’s at that point

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that the money starts to flow and you have this closer relationship between the State and the CPA but it’s separated by the contractual process and PA 53 itself. . . . Under clear Supreme Court precedent, what the CPA does without the State commanding it to do is not state action that can be attributable to these state defendants. (7/18/18 Hr’g Tr. 19:2-8, 19:14-20:4, 20:13-16.) The “clear Supreme Court precedent” to which counsel referred and went on to discuss was Blum and RendellBaker. The State Defendants’ state action argument must fail, at least at this stage of the proceedings, because: (1) it ignores the language of both Blum and Rendell-Baker suggesting that the test is not whether the state “commanded” the action but whether the state “overtly or covertly encouraged” or “influenced” the challenged conduct; (2) it ignores the allegations of Plaintiffs’ Complaint that plausibly suggest that a singular, unified contract governs the relationship between the State and a child placing agency and that contract does not clearly set forth such a bright-line distinction between funding for the recruitment and referral processes; and (3) it relies on factual assertions that impermissibly (at this stage of the proceedings) contradict the allegations of Plaintiff’s Complaint. The issue is not simply whether the State “commanded” the conduct challenged here – the inquiry is much more nuanced than that. And although there is a statutory provision, Mich. Comp. Laws § 722.124e(1)(h), that provides that a child placing
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agency does not receive public funding with respect to a particular child unless the agency accepts the referral, the parties have pointed to nothing in the adoption services contracts that expressly governs how the child placing agency must allocate each dollar of those funds. The State Defendants suggest that an impenetrable line is drawn between “recruitment” and “referral” and that no funds flow from the State to any aspect of the “recruitment” process where the alleged discriminatory conduct occurs. This argument contradicts the allegations of Plaintiffs’ Complaint, which alleges that the State pays these child placing agencies to perform the entirety of a single contract for public adoption and foster care services, a contract that addresses recruitment as well as referral, and in fact alleges that Plaintiffs do not challenge any agency’s use of non-public funds. (Compl. ¶¶ 3, 8, 25, 32.) Plaintiffs’ counsel described succinctly during oral argument the issues of fact that abound in this inquiry:
The Court: Let me ask you a question. Do you dispute the issue of exactly when the funds flow – Plaintiffs’ Counsel: Yeah, I do. The Court: – and how is this a question of fact or is this – Plaintiffs’ Counsel: Well, there are some questions of fact in there that certainly that representation cannot be accepted on a motion to dismiss. But also stepping back, they are attempting to parse out the home studying part of their contracted services . . . and say that’s not really this
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delegated government function, that’s not really the funded activity, because the payment arrangement they have . . . with the State is they get paid by per diem rates for the children that they actually place. But the contract themselves specifically call for recruitment and licensing of families and, in fact, we allege in the complaint in paragraphs 25 and 32 that recruitment is a part of that work that they’re contracted to do. You can’t get funding by placing kids if you don’t have families to place them with. And you can’t have families to place them with if you don’t do the licensing process which necessarily includes a home study. Home studying is not some thing they do for fun on the side that’s unrelated to the contract. . . They get to do that because they are contracted by the State to perform adoption and foster care services, so . . . They are getting paid for providing child welfare services for the whole package of what they’re providing, and the manner in which the State and the agencies have agreed to provide that payment was based in part on a per diem rate for children in their care. It’s simply a matter of payment. It’s not that it’s different services. It’s all part and parcel to the same services.
(Hr’g Tr. 84:12-21, 84:23-25, 85:2-13, 85:21-86:3.)
It is undisputed that the State contracts with the child placing agencies cover the
whole range of adoption and foster care services, including recruitment and referral,
and that the contracts expressly reference and incorporate the religious belief
protection of PA 53, which suggests the State’s imprimatur on the use of religious
criteria in the very gateway to the State’s adoption process. The Intervenor Defendants
argued strenuously at the hearing on their motion to dismiss that the Court must look
to where the money is actually being spent to determine whether a particular activity
is being supported by state funding. (Hr’g Tr. 70:7-72:1.) Discovery is necessary to
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determine how the recruitment and referral process actually works and how the funds actually flow, as well as the legal relevance of that flow of funds on the facts that are revealed. The Court cannot accept the State’s controverting assertions regarding this alleged “bifurcation” of the recruitment and referral processes at this pleading stage. Nor does the Court express any opinion on the legal significance of such a separation, even assuming it exists here.
Plaintiffs have adequately alleged state action, whether viewed as an issue of standing or as an element of their substantive constitutional claims.
F. The Court Rejects St. Vincent’s First Amendment Arguments Which Rely on Contested Matters Outside the Pleadings and are Prematurely Asserted
St. Vincent argues that any Order from this Court that would preclude the State from allowing faith-based child placing agencies to use religious criteria in carrying out adoption and foster care services under their contracts with the State would violate St. Vincent’s constitutional rights under the Free Exercise and Free Speech Clauses of the First Amendment. (Intervenor Defs.’ Mot. 14-24.) As Plaintiffs correctly observe, none of these affirmative defenses are relevant to the only issue before the Court – whether Plaintiffs have adequately pleaded cognizable Establishment Clause and Equal Protection claims. Even looking forward at this pleading stage to the potential effects of this Court’s granting Plaintiffs the relief they seek, the Court is
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unconvinced that St. Vincent can prevail on a claim that prohibiting the State from allowing the use of religious criteria by those private agencies hired to do the State’s work would violate St. Vincent’s Free Exercise or Free Speech rights.
St. Vincent relies primarily on four cases, none of which compels the Court to reach the conclusions they urge. In Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), the Supreme Court found “an impermissible attempt to target petitioners and their religious practice” in ordinances that prohibited the killing of animals for sacrificial/ritual purposes. 508 U.S. at 535. The Court found that “almost the only conduct subject to [the] Ordinances . . . is the religious exercise of Santeria church members.” Id. Lukumi stands for the proposition, not relevant here, that even a facially neutral law will be struck down if its effect is to target and prohibit certain conduct solely because of religion. Lukumi is particularly inapt here because the case does not address the balance, so critical here, between the Free Exercise Clause and the Establishment Clause.
In Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), the Supreme Court addressed the constitutionality of the Missouri Department of Natural Resources’ (“the Department”) denial of a grant to the Trinity Lutheran Church Child Learning Center, a religious nonprofit that ran a daycare and preschool under the auspices of the Trinity Lutheran Church (“Trinity Lutheran”). The
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Department “offer[ed] state grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.” Id. at 2017. “Trinity Lutheran applied for such a grant for its preschool and would have received one, but for the fact that Trinity Lutheran is a church [and] [t]he Department had a policy of categorically disqualifying churches and other religious organizations from receiving grants under its playground resurfacing program.” Id. The Court concluded that the Department’s policy violated Trinity Lutheran’s rights under the Free Exercise Clause of the First Amendment because the policy “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” Id. at 2021. The Court concluded that the policy had the effect of conditioning eligibility for a government benefit on Trinity Lutheran renouncing its religious character and therefore the policy was subject to strict scrutiny review. Id. at 2024. There was no issue raised regarding what Trinity Lutheran would do with the grant money, i.e. whether it would be used for doctrinal religious purposes. The grant money would be used for a playground surface. The only possible basis for excluding Trinity Lutheran was because of its general religious character – quite unrelated to how it would use the government grant money.
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In this case, Plaintiffs are not seeking an order prohibiting the State from partnering with faith-based agencies because they are religious. Plaintiffs seek an order prohibiting the State from partnering with faith-based agencies that allegedly use the money they receive from the State under the adoption contract to employ religious criteria to exclude same sex couples – something the State itself could not do – in performing those state services under contract with the State.
Agency for Int’l Development v. Alliance for Open Society, Int’l, Inc., 570 U.S. 205 (2013) (“AFOS”), stands for the proposition that the government cannot impose a condition on the receipt of government funding that has the effect of regulating speech outside the funded program. St. Vincent has failed to explain how, assuming the truth of the allegations of Plaintiffs’ Complaint, an Order precluding child placing agencies from using religious criteria in carrying out their State-contracted functions would “leverage[] the [] funding to regulate [St. Vincent’s] speech outside the scope of the program.” AFOS, 570 U.S. at 216. Plaintiffs allege in their Complaint that they do not challenge the manner in which St. Vincent expends private funds. And while St. Vincent denies that it uses any State funds in its recruitment process, this assertion impermissibly contradicts the allegations of the Plaintiffs’ Complaint at this pleading stage, as discussed at length supra. As the Supreme Court observed in AFOS, the “relevant distinction . . . is between conditions that define the limits of the government
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spending program – those that specify the activities Congress wants to subsidize – and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.” 570 U.S. at 214-15. Here, assuming the veracity of the allegations of Plaintiffs’ Complaint, St. Vincent fails to explain how any “limits” placed by the State on the child placing agencies’ use of religious criteria in their performance under their adoption and foster care services contracts would seek to leverage St. Vincent’s speech “outside the contours of the program itself.” Id. at 215. At least based on the allegations of Plaintiffs’ Complaint, AFOS does not support St. Vincent’s Free Exercise argument.
St. Vincent’s reliance on National Institute of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) (“NIFLA”), is similarly misplaced. St. Vincent submitted NIFLA to the Court in a supplemental notice (ECF No. 44), which the Court accepted in part and struck in part (ECF No. 45). NIFLA involved a challenge to the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (“FACT Act”) which “require[d] clinics that primarily serve pregnant women to provide certain notices.” 138 S. Ct. at 2368. The Supreme Court noted that “the California State Legislature enacted the FACT Act to regulate crisis pregnancy centers.” Id. The Court further noted that the legislative history revealed that these centers were “largely Christian belief-based” and “aim[ed] to discourage
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and prevent women from seeking abortions.” Id. (internal quotation marks and citations omitted). “To address this perceived problem [of discouraging women from seeking abortions], the FACT Act imposes two notice requirements on facilities that provide pregnancy-related services – one for licensed facilities and one for unlicensed facilities.” Id. A licensed facility was required “to disseminate a government-drafted notice on site” that informed women that “California has public programs that provide immediate free or low-cost access comprehensive family planning services . . . and abortion for eligible women.” Id. at 2369.
The Court began its analysis by explaining that “content-based regulations target speech based on its communicative content . . . [and] [a]s a general matter [] are presumptively unconstitutional . . . .” Id. at 2371 (internal quotation marks and citations omitted). The Court concluded that the centers were likely to succeed on their claims as to the licensed notice (the case was before the Court on a denial of a preliminary injunction) because those notices were content-based and compelled the centers to “speak a particular message” and “‘alte[r] the content of [their] speech.’” Id. at 2371 (quoting Riley v. National Federation of Blind of N.C., Inc., 487 U.S. 781, 795 (1988)) (alterations in original). The Court continued:
Here, for example, licensed clinics must provide a government-drafted script about the availability of state-sponsored services, as well as contact information for how to obtain them. One of those services is
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abortion—the very practice that petitioners are devoted to opposing. By requiring petitioners to inform women how they can obtain state-subsidized abortions—at the same time petitioners try to dissuade women from choosing that option—the licensed notice plainly “alters the content” of petitioners' speech. 138 S. Ct. at 2371. But nothing in Plaintiffs’ Complaint suggests or requires the conclusion that St. Vincent would be required to disseminate any kind of scripted statement as a condition of partnering with the State to provide child welfare services. Again, St. Vincent asks the Court to assume facts not alleged in Plaintiffs’ Complaint and to dismiss Plaintiffs’ Complaint based on St. Vincent’s assertion of what would occur if the Court were to grant the relief requested. This is not the appropriate stage of proceedings for the Court to address this argument. And if it did address it now, it would conclude that, based on the allegations of the Complaint, no such scripted, content-based restriction has been requested as relief. In addition, St. Vincent has failed to distinguish Teen Ranch, Inc. v. Udow, 389 F. Supp. 2d 827 (W.D. Mich. 2005), aff’d Teen Ranch, Inc. v. Udow, 479 F.3d 403, 410 (6th Cir. 2017) (based on the “sound [and] clearly articulated” reasoning of the district court rejecting each of Teen Ranch’s constitutional claims). Teen Ranch is instructive here. In Teen Ranch, the Michigan Family Independence Agency (“the FIA”) had partnered for some time with Teen Ranch, a Christian faith-based
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organization that provided residential care and services under contract with the FIA to abused, neglected and delinquent children who had been committed to or placed in the care of the FIA. 389 F. Supp. 2d at 829. Of the 96 private child care agencies with whom the FIA contracted to provide residential youth services, 35 of whom were faith-based, Teen Ranch was the “the only provider that incorporate[d] its religious beliefs and teaching into the services funded under its contract with the FIA.” Id. When its last contract extension with Teen Ranch expired in October, 2003, FIA was concerned that continuing to enter into contracts with Teen Ranch that incorporated Teen Ranch’s faith-based tenets and teachings in its provision of FIA services would violate the Establishment Clause, and FIA instituted a moratorium on all placements at Teen Ranch. Id. at 830. The moratorium caused Teen Ranch to close several of its programs and to sell half of its residential facilities. Id. Teen Ranch filed suit asserting several constitutional claims, including some of the same Free Exercise and Free Speech claims that St. Vincent’s asserts here.
As the District Court phrased the issue: “Teen Ranch wants to be free to exercise its religious faith without interference from the State, and the FIA wants to avoid violating the Establishment Clause by subsidizing a particular religious viewpoint.” 389 F. Supp. 2d at 831. The district court first concluded, after a lengthy analysis rejecting Teen Ranch’s argument regarding the import of the youths’
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“private choice,” that the direct funding of Teen Ranch by the FIA, continuing to incorporate Teen Ranch’s faith-based teachings, would violate the Establishment Clause. Id. at 831-38. The district court then turned to Teen Ranch’s argument that the FIA’s refusal to renew its contract violated Teen Ranch’s Free Exercise and Free Speech rights. The district court rejected Teen Ranch’s argument that “the moratorium violates the Free Exercise Clause because it conditions the receipt of a governmental benefit on Teen Ranch’s surrender of its religious beliefs and practices and burdens the free exercise of Plaintiff’s religious beliefs without satisfying the strict scrutiny standard.” Id. at 837-38. Dismissing Teen Ranch’s reliance on cases holding that the government cannot deny a public benefit based on a recipient’s religious beliefs, the district court held that: “Unlike unemployment benefits or the ability to hold office, a state contract for residential youth residential services is not a public benefit.” Id. at 838. “[T]he State cannot be required under the Free Exercise Clause to contract with a religious organization.” Id. In affirming the district court, the Sixth Circuit specifically affirmed the district court’s conclusion that a state contract to provide services to delinquent and troubled youths whose care has been committed to the State is not a public benefit. 479 F.3d at 409. The district court further reasoned that “[t]he mere non-funding of private secular and religious school programs does not burden a person’s religion or the free exercise thereof.” 389 F. Supp. 2d at 838 (internal
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quotation marks and citation omitted). The district court observed that “[t]he Free Exercise Clause’s protection of religious beliefs and practices from direct government encroachment does not translate into an affirmative requirement that public entities fund religious activity simply because they choose to fund the secular equivalents of such activity.” Id. (internal quotation marks and citation omitted.) The district court granted the FIA summary judgment on Teen Ranch’s Free Exercise claim. Id. at 839.
The district court also rejected Teen Ranch’s Free Speech argument: “The fact that FIA has decided to contract out some of its children’s services responsibilities to private providers does not create a forum for private speech. The purpose of contracting for these services is to provide treatment for troubled youth in a residential setting, not to promote the private speech of the providers of that care.” 389 F. Supp. 2d at 840. Again, in affirming the district court, the Sixth Circuit expressly affirmed this rationale. 479 F.3d at 410.
Teen Ranch suggests some principles that are important here. First, that a state agency seeking to provide child welfare services to wards of the State has no entitlement to a contract with the State to provide those services: “Unlike unemployment benefits or the ability to hold office, a state contract for [child welfare] services is not a public benefit [and] the State can[not] be required under the Free Exercise Clause to contract with a religious organization.” 389 F. Supp. 2d at 838.
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“[T]he mere non-funding of private secular and religious [] programs does not ‘burden’ a person's religion or the free exercise thereof.” Id. (internal quotation marks and citation omitted) (second alteration added). Second, a State’s “decision to contract with private entities to deliver [public child welfare] services d[oes] not create, encourage or otherwise facilitate private expression, and accordingly the state c[an] make a content-based selection of private sector providers without violating the First Amendment.” Id. at 839. As discussed supra, the Sixth Circuit affirmed the district court on both of these points. St. Vincent has not distinguished Teen Ranch and has not explained how these same principles do not defeat its First Amendment arguments here.
Much of St. Vincent’s argument relating to its First Amendment claims relies on matters outside the pleadings that the Court cannot consider at this stage of proceedings and that in many instances directly contradict the allegations of Plaintiffs’ Complaint. In addition, St. Vincent has offered very little, either in its briefing or at oral argument, to distinguish Teen Ranch, which the Court finds instructive. At this motion to dismiss stage, where the sole issues before the Court are whether Plaintiffs have alleged plausible Establishment Clause and Equal Protection Claims, St. Vincent cannot succeed on its First Amendment Free Exercise and Free Speech arguments.
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IV. CONCLUSION For the foregoing reasons, the Court DENIES the Defendants’ motions to
dismiss with the sole exception that the Court GRANTS the Defendants’ motion to dismiss Plaintiff Jennifer Ludolph’s claims on the basis that Ms. Ludolph has failed to establish standing to proceed with her claims. IT IS SO ORDERED.
s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE Dated: September 14, 2018 CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on September 14, 2018.
s/Deborah Tofil Case Manager
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; REBECCA BUSK-SUTTON,
Plaintiffs,
v.

Case No. 17-cv-13080
Paul D. Borman United States District Judge

NICK LYON, in his official capacity as the Director of the Michigan department of Health and Human Services; and HERMAN MCCALL, in his official capacity as the Executive Director of the Michigan Children’s Services Agency,

Defendants, and

ST. VINCENT CATHOLIC CHARITIES, MELISSA BUCK, CHAD BUCK, and SHAMBER FLORE,

Intervenor Defendants. ______________________________________/

OPINION AND ORDER DENYING INTERVENOR DEFENDANTS’ MOTION FOR CERTIFICATION UNDER 28 U.S.C. § 1292(b) AND STAY OF FURTHER PROCEEDINGS (ECF NO. 53)

On September 14, 2018, this Court entered an Order Denying in Large Part

Defendants’ Motions to Dismiss and Dismissing the Claims of Plaintiff Ludolph for

Lack of Standing. (ECF No. 49, 9/14/18 Opinion and Order.) The Intervenor
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Defendants now move the Court to certify its 9/14/18 Opinion and Order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The Plaintiffs have filed a Response to the motion to certify (ECF No. 55) and the Intervenor Defendants have filed a Reply (ECF No. 59). For the reasons that follow, the Court declines to exercise its discretion to certify its interlocutory 9/14/18 Opinion and Order for immediate appeal and DENIES the motion. I. BACKGROUND
Plaintiffs filed their 42 U.S.C. § 1983 Complaint challenging Defendants Nick Lyon (sued in his official capacity as the Director of the Michigan Department of Health and Human Services “DHHS”) and Herman McCall’s (sued in his official capacity as the Executive Director of the Michigan Children’s Services Agency “CSA”) (“the State Defendants”) practice of contracting with and permitting state-contracted and taxpayer-funded child placing agencies to use religious criteria to screen prospective foster and adoptive parents for children in the foster care system. Plaintiffs are prospective adoptive same-sex couples and individuals who have contacted certain faith-based Michigan adoption agencies and, based upon their same-sex status, been denied the state-contracted-for services to process their papers necessary for consideration for child placement by all adoption agencies. Plaintiffs allege that the the State Defendants’ practice of contracting with these faith-based
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agencies that refuse to consider them as prospective adoptive parents violates their rights protected by the Establishment Clause of the First Amendment to the United States Constitution and also violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs seek a declaratory judgment that these practices violate the First and Fourteenth Amendments and seek an Order enjoining Defendants Lyon and McCall, in their official capacities, from contracting with or providing taxpayer funding to private child placing agencies that exclude same-sex couples from consideration as foster or adoptive parents or otherwise employ religious criteria in the screening of prospective foster and adoptive parents. The Court has granted the motions of St. Vincent Catholic Charities, Melissa Buck, Chad Buck, and Shamber Flore (“the Intervenor Defendants”) to intervene in this action. (ECF Nos. 31, 34.)
The Court issued its 9/14/18 Opinion and Order and denied the motions to dismiss filed by the State Defendants and the Intervenor Defendants, granting only the motion to dismiss the claims of Plaintiff Ludolph for lack of standing. The Intervenor Defendants now seek to have this Court certify its 9/14/18 Opinion and Order for immediate appeal.
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II. LEGAL STANDARD
Title 28 U.S.C. § 1292(b) states as follows:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b) (emphasis in original).
In deciding whether to exercise its discretion under § 1292(b), a district court
must consider whether: “(1) the order involves a controlling question of law, (2) a
substantial ground for difference of opinion exists regarding the correctness of the
decision, and (3) an appeal may materially advance the ultimate termination of the
litigation.” In re City of Memphis, 293 F.3d 345, 350 (6th Cir. 2002). “Review under
§ 1292(b) is granted sparingly and only in exceptional cases.” Id. (citing Kraus v. Bd.
of County Rd. Comm’rs, 364 F.2d 919, 922 (6th Cir. 1966)).
“A legal issue is controlling if it could materially affect the outcome of the
case.” In re City of Memphis, 293 F.3d at 351. “‘Under Sixth Circuit law, ‘substantial
grounds for difference of opinion’ exist only when there is conflicting authority on an
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issue.” Chrysler Group LLC v. South Holland Dodge, Inc., 862 F. Supp. 2d 661, 688 (E.D. Mich. 2012) (quoting Serrano v. Cintas Corp., Nos. 04-40132, 06-12311, 2010 WL 940164 (E.D. Mich. 2010) (citing In re City of Memphis, 293 F.3d at 350–51)). Substantial ground for difference of opinion may exist where:
(1) the question is difficult, novel and either a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions; (2) the question is difficult and of first impression; (3) a difference of opinion exists within the controlling circuit; or (4) the circuits are split on the question. In re Miedzianowski, 735 F.3d 383, 384 (6th Cir. 2013) (internal quotation marks and citations omitted). “An interlocutory appeal materially advances litigation when it ‘save[s] judicial resources and litigant expense.’” Dassault Systemes, S.A. v. Childress, No. 09-cv-10534, 2016 WL 8229034, at *2 (E.D. Mich. June 22, 2016) (quoting Newsome v. Young Supply Co., 873 F. Supp. 2d 872, 878 (E.D. Mich. 2012)). III. ANALYSIS The Intervenor Defendants seek to certify two questions for appeal: (1) “the proper standard for determining whether a plaintiff has standing to plead an Establishment Clause violation by a non-governmental actor,” and (2) “whether or when the state may become liable for the actions of a private adoption agency.” (ECF No. 53, Intervenor Defendants’ Mot. 2, PgID 1217.) Simply stated, the Intervenor Defendants have failed to identify a “controlling question of law” that was decided by
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this Court in its September 14, 2018 Opinion and Order. The questions of law that the Intervenor Defendants seek to certify are based on the same faulty premise to which they stubbornly clung throughout their motion to dismiss – i.e. that the Plaintiffs have filed their claims against a private child placing agency, a non-governmental actor.
As this Court reiterated multiple times in its Opinion and Order, the Plaintiffs have not pleaded their Establishment Clause and Equal Protection claims against a private child placing agency but have asserted those claims against State officials for action taken in their official capacity, specifically the State’s practice and procedure of “entering into contracts for the provision of state-contracted services, expressly acknowledging that certain faith-based agencies may elect to discriminate on the basis of sexual orientation in carrying out those state-contracted services, conduct that the Defendants concede the State could not take itself.” (ECF No. 49, 9/14/18 Opinion and Order at 75-76, PgID 1144-45.) For example, when discussing the issue of General Article III standing, the Court observed:
[Plaintiffs] argue instead that their Equal Protection and Establishment Claims are premised on injuries they suffered as a result of the State Defendants' practice of entering into contracts for the provision of state child welfare services with child placing agencies that use religious criteria to turn away prospective parents, causing Plaintiffs stigmatic harm and denying Plaintiffs the same opportunities to work with a child placing agency that is available to every other family in Michigan seeking to adopt. Their Complaint does not challenge any particular agency’s decision not to work with them.
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(9/14/18 Opinion and Order 23.) Plaintiffs did not plead an Establishment Clause violation by a non-
governmental actor (issue for certification number one) and Plaintiffs are not seeking to hold the State liable for the actions of a private adoption agency (issue for certification number two). Plaintiffs pleaded an Establishment Clause claim against, and are seeking to hold liable, State officials acting in their official capacities carrying out the State’s practice of contracting with faith-based agencies that are known to discriminate on the basis of sexual orientation. The “novel” and “difficult” issues that the Intervenor Defendants seek to have this Court certify rest on a faulty premise and were simply not the issues presented by the Plaintiffs’ Complaint, or the issues addressed and decided by the Court. And as to the issues that the Court did decide, the Court relied on controlling Sixth Circuit and Supreme Court precedent in concluding that Plaintiffs’ plausibly alleged standing (at this stage of the proceedings) to bring both their Establishment Clause and Equal Protection claims against the State Defendants and plausibly pleaded those substantive claims against the State Defendants. The Intervenor Defendants do not identify any conflicting authority on the issues that were actually decided by this Court.
Nor do prudential considerations favor certification here. The Intervenor Defendants argue that “judicial economy interests are an important factor in
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determining whether to certify an order for interlocutory appeal.” (Mot. to Certify 20, PgID 1235.) In its 9/14/18 Opinion and Order, the Court highlighted many instances in which the Defendants ignored or contradicted the allegations of Plaintiffs’ Complaint with factual assertions that were not made or plausibly inferred from the allegations of Plaintiffs’ Complaint.
As the Court’s 9/14/18 Opinion and Order suggests, discovery is necessary here before further analysis can fully address the issues in dispute. To this end, this Court has entered an expedited scheduling order, with discovery (both fact and expert) to be completed by January 31, 2019, and dispositive motions and motions challenging experts to be filed on or before February 28, 2019. A hearing on those motions has already been scheduled to take place in early May, 2019. (ECF No. 50, Case Management and Scheduling Order.) The Court will demand strict adherence to these deadlines and will move this case along expeditiously. Much can be accomplished in this Court before the Sixth Circuit would even have the opportunity to address any appeal, and much can be learned through discovery that will have significant bearing on the resolution of the important issues in dispute in this case. IV. CONCLUSION
The issues that Intervenor Defendants purport to have the Court certify for appeal were simply not the issues presented by the Plaintiffs’ Complaint or decided
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by this Court in its 9/14/18 Opinion and Order. The Intervenor Defendants have not established that any one of the three considerations relevant to the § 1292(b) analysis favors certification here. Accordingly, the Motion for Certification is DENIED. IT IS SO ORDERED.

Dated: October 25, 2018

s/Paul D. Borman PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

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 Case 2:17-cv-13080-PDB-EAS ECF No. 82 filed 03/22/19 PageID.1437 Page 1 of 31

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; and REBECCA BUSK-SUTTON,
Plaintiffs,
v.
ROBERT GORDON, in his official capacity as the Director of the Michigan Department of Health and Human Services; and JENNIFER WRAYNO, in her official capacity as the Acting Executive Director of the Michigan Children’s Services Agency,

No. 2:17-cv-13080-PDB-EAS HON. PAUL D. BORMAN MAG. ELIZABETH A. STAFFORD
STIPULATION OF VOLUNTARY DISMISSAL
WITH PREJUDICE

Defendants,

and

ST. VINCENT CATHOLIC CHARITIES; MELISSA BUCK; CHAD BUCK; and SHAMBER FLORE,

Intervenor Defendants.

Plaintiffs Kristy Dumont, Dana Dumont, Erin Busk-Sutton, and Rebecca Busk-Sutton (collectively, “Plaintiffs”) and Defendants Robert Gordon and

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Jennifer Wrayno1 (collectively, “State Defendants”) file this stipulation of dismissal of the above-captioned action (the “Action”) under Rule 41(a)(2) of the Federal Rules of Civil Procedure. Plaintiffs and State Defendants state as follows:
On September 20, 2017, Plaintiffs filed the complaint in the Action with the U.S. District Court for the Eastern District of Michigan against the State Defendants. (ECF No. 1.)
On December 18, 2017, St. Vincent Catholic Charities, Melissa and Chad Buck, and Shamber Flore (“Intervenor Defendants”) moved to intervene in this case (ECF No. 18), which motion was granted on March 22, 2018. (ECF No. 34.)
On September 14, 2018, this Court denied in substantial part the motions to dismiss filed by State Defendants and Intervenor Defendants. (ECF No. 49 at 93.)
On September 17, 2018, the Court entered a schedule for discovery and briefing to “manage the progress of the case” (the “September 17 Scheduling Order”). (ECF No. 51 at 1.)
On October 31, 2018, all Parties jointly moved to modify the September 17 Scheduling Order. (ECF No. 61.) On November 2, 2018, this Court granted in part and denied in part that motion. (ECF No. 62.)
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, this stipulation reflects the substitution of Herman McCall, a party in his official capacity who has ceased to hold office during the pendency of the Action, for Jennifer Wrayno, who is “automatically substituted as a party.”

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On November 13, 2018, this Court issued an Amended Scheduling Order. (ECF No. 63.)
The Parties have engaged in substantial discovery, including the exchange of written discovery and document production.
On January 23, 2019, Plaintiffs and State Defendants moved this Court to stay proceedings as Plaintiffs and State Defendants actively worked to reach a resolution. (ECF No. 74.) On that same day, Plaintiffs filed a Joint Motion for Immediate Consideration of the Motion to Stay Proceedings. (ECF No. 75.)
On January 24, 2019, this Court granted in part Plaintiffs’ and State Defendants’ Joint Motion to Stay Proceedings, entering a thirty (30) day stay of proceedings. (ECF No. 76.)
On February 22, 2019, State Defendants moved this Court to stay proceedings as Plaintiffs and State Defendants actively worked to reach a resolution. (ECF No. 79.) On that same day, State Defendants filed a Motion for Immediate Consideration of the Motion to Stay Proceedings (ECF No. 80) and this Court granted State Defendants’ Motion to Stay Proceedings, entering a thirty (30) day stay of proceedings (ECF No. 81).
Plaintiffs and State Defendants have since entered into a Settlement Agreement, disposing of all claims asserted in the Action. An executed copy of the Settlement Agreement is attached hereto as Exhibit A. Intervenor Defendants,

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who have asserted no claims and against whom no claims have been asserted, are not party to the Settlement Agreement.
Plaintiffs and State Defendants have agreed that all costs and attorneys’ fees are the responsibility of the party incurring same. For the foregoing reasons, Plaintiffs and State Defendants respectfully request that the Court enter an order to dismiss all of Plaintiffs’ claims in the Action.

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Dated: March 22, 2019
Jay Kaplan (P38197) Michael J. Steinberg (P43085) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6823 jkaplan@aclumich.org msteinberg@aclumich.org
Daniel Mach American Civil Liberties Union
Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org

/s/ Ann-Elizabeth Ostrager
Leslie Cooper American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2633 lcooper@aclu.org
Garrard R. Beeney Ann-Elizabeth Ostrager Jason W. Schnier SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004-2498 Telephone: (212) 558-4000 beeneyg@sullcrom.com ostragerae@sullcrom.com schnierj@sullcrom.com
Counsel for Plaintiffs

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/s/ Joshua S. Smith
Joshua S. Smith (P63349) Assistant Attorney General Attorneys for State Defendants Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 335-7603 Smithj46@michigan.gov
Counsel for State Defendants

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EXHIBIT A Settlement Agreement

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SETTLEMENT AGREEMENT
Dumont et al. v. Gordon et al. USDC EDMI Case No. 2:17-cv-13080-PDB-EAS
This Settlement Agreement (the “Agreement”) between Kristy Dumont, Dana Dumont, Erin Busk-Sutton and Rebecca Busk-Sutton (collectively, the “Plaintiffs”), and Robert Gordon, in his official capacity as the Director of the Michigan Department of Health and Human Services (“MDHHS”), and Jennifer Wrayno, in her official capacity as the Acting Executive Director of the Michigan Children’s Services Agency (“MCSA”) (Gordon, Wrayno, MDHHS and MCSA collectively referred to herein as the “Department”), resolves Plaintiffs’ claims against the Department in the case captioned Dumont et al. v. Gordon et al., Case No. 2:17-cv-13080-PDBEAS, pending in the United States District Court for the Eastern District of Michigan (the “Litigation”), as stated herein. Throughout this Agreement, Plaintiffs and the Department may be referred to as a “Party” or collectively referred to as “Parties.”
WHEREAS, the Department contracts with licensed child placing agencies (“CPAs”) to provide adoption-related services for permanent wards placed with the Department for care, supervision, and adoption (“Adoption Services Contracts”).
WHEREAS, the Department contracts with licensed CPAs to provide foster care case management related services for children placed with the Department for care, supervision, and foster care placement (“PAFC Services Contracts”). Throughout this Agreement, the Adoption Services Contracts and the PAFC Services Contracts are collectively referred to as “Contracts.”
WHEREAS, the Department may contract with one or more licensed CPAs (“Contractors”) to subcontract with other licensed CPAs to provide adoption related services, in substantial compliance with the terms of the Adoption Services Contract, for permanent wards placed with the Department for care, supervision, and adoption (“Adoption Services Subcontracts”).
WHEREAS, the Department may contract with one or more Contractors to subcontract with other licensed CPAs to provide foster care case management related services, in substantial compliance with the terms of the PAFC Services Contracts, for children placed with the Department for care, supervision, and foster care placement (“PAFC Services Subcontracts”). Throughout this Agreement, Adoption Services Subcontracts and PAFC Services Subcontracts are collectively referred to as “Subcontracts.”
WHEREAS, the Contracts and the Subcontracts include a non-discrimination provision mandating that contracted CPAs comply with the Department’s non-discrimination statement prohibiting discrimination “against any individual or group because of race, sex, religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs, or disability” in the provision of services under contract with the Department (the “Non-Discrimination Provision”).
WHEREAS, on September 20, 2017, Plaintiffs filed a complaint asserting claims against the Department in the Litigation. Thereafter, St. Vincent Catholic Charities, Melissa Buck, Chad Buck, and Shamber Flore intervened as defendants (collectively, “Intervening Defendants”) in the Litigation. Plaintiffs have asserted no claims, and have no current intention to assert any claims,

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against Intervening Defendants in the Litigation. Likewise, the named Defendants have asserted no claims, and have no current intention to assert any claims, against Intervening Defendants in the Litigation. Intervening Defendants have not asserted any claims, counter-claims or crossclaims against Plaintiffs, Defendants, or any third party in the Litigation.
WHEREAS, Plaintiffs and the Department wish to resolve the Litigation; the Parties agree that they are entering into this Agreement for that purpose only and it is not to be construed as an admission of any liability or wrongdoing.
THEREFORE, in addition to the foregoing, and in the interest of resolving the Litigation, the Parties agree as follows:
Section 1. Unless prohibited by law or court order:
a. The Department shall continue including in Contracts, and shall continue requiring all Contractors to include in Subcontracts, the Non-Discrimination Provision, or a materially and substantially similar provision (“Similar Provision”).
b. For the avoidance of doubt, policies and practices prohibited under the NonDiscrimination Provision include, without limitation,
i. turning away or referring to another contracted CPA an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for services under a Contract or a Subcontract;
ii. refusing to provide orientation or training to an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for services under a Contract or a Subcontract;
iii. refusing to perform a home study or process a foster care licensing application or an adoption application for an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for services under a Contract or a Subcontract; and
iv. refusing to place a child accepted by the CPA for services under a Contract or a Subcontract with an otherwise qualified LGBTQ individual or samesex couple suitable as a foster or adoptive family for the child;
in each case, without regard to whether such individual or couple has identified any particular child for foster placement or adoption.
c. The Department shall enforce the Non-Discrimination Provision or Similar Provision against a CPA that the Department determines is in violation of, or is unwilling to comply with, such provisions (collectively, a “Contract
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Violation”), up to and including termination of the Contracts in accordance with the termination provisions therein, including without limitation:
i. In the event a CPA refuses to comply with the Non-Discrimination Provision or Similar Provision within a reasonable time after notification by the Department of a Contract Violation, the Department will terminate the CPA’s Contracts.
ii. The Department will initiate an investigation when made aware of an alleged Contract Violation. In the event the Department determines that a CPA has committed a Contract Violation, the Department will provide the CPA with notice and a reasonable opportunity to implement a Departmentapproved corrective action plan mandating immediate, regular, and continuous provision of foster care case management services or adoption services, as applicable, in compliance with the Non-Discrimination Provision or Similar Provision; where the CPA fails to demonstrate compliance after a reasonable opportunity to implement the approved corrective action plan, the Department will terminate the CPA’s Contracts.
d. The Department shall require all Contractors to enforce the Non-Discrimination Provision or Similar Provision against a CPA that the Contractor or the Department determines is in violation of, or is unwilling to comply with, such provisions (collectively, a “Subcontract Violation”), up to and including termination of the Subcontracts in accordance with the termination provisions therein, including without limitation:
i. In the event a CPA refuses to comply with the Non-Discrimination Provision or Similar Provision within a reasonable time after notification by the Contractor or the Department of a Subcontract Violation, the Department will require the Contractor to terminate the CPA’s Subcontracts.
ii. The Department will require a Contractor to initiate an investigation when made aware of an alleged Subcontract Violation. In the event the Contractor or the Department determines that a CPA has committed a Subcontract Violation, the Department will require the Contractor to provide the CPA with notice and a reasonable opportunity to implement a Contractorapproved corrective action plan mandating immediate, regular, and continuous provision of foster care case management services or adoption services, as applicable, in compliance with the Non-Discrimination Provision or Similar Provision; where the CPA fails to demonstrate compliance after a reasonable opportunity to implement the approved corrective action plan, the Department will require the Contractor to terminate the CPA’s Subcontracts.
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e. The Department shall provide ongoing training as part of the Department’s existing training programs to Department employees, Contractors, and contracted CPAs with respect to:
i. the Litigation and the obligations under this Agreement;
ii. the obligations of, and reporting channels available to, the Department’s employees and Contractors to report any Contract or Subcontract Violation or suspected Contract or Subcontract Violation by contracted CPAs, including, without limitation, to the Department’s Division of Child Welfare Licensing via the “Online Complaint Form” accessible on the Department’s website;
iii. the Department’s obligations to investigate any Contract Violation or suspected Contract Violation reported verbally or in writing to the Department and to enforce the Non-Discrimination Provision or Similar Provision; and
iv. a Contractor’s obligations to investigate any Subcontract Violation or suspected Subcontract Violation by contracted CPAs reported verbally or in writing to the Contractor, and to enforce the Subcontracts.
f. The Department shall publish and maintain a hyperlink to the Department’s Division of Child Welfare Licensing “Online Complaint Form” in a prominent place on the landing page of the Department’s website; and
g. The Department shall make a public announcement in substantially the following form:
The Department’s contracts with child placing agencies prohibit discrimination against any individual or group because of race, religion, age, national origin, color, height, weight, marital status, sex, sexual orientation, gender identity or expression, political beliefs or disability.
Examples of prohibited discriminatory conduct include:
 turning away or referring to another contracted CPA an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for contracted services;
 refusing to provide orientation or training to an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for contracted services;
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Section 2. Section 3. Section 4. Section 5. Section 6.

 refusing to perform a home study or process a foster care licensing application or an adoption application for an otherwise potentially qualified LGBTQ individual or same-sex couple that may be a suitable foster or adoptive family for any child accepted by the CPA for contracted services; and
 refusing to place a child accepted by the CPA for contracted services with an otherwise qualified LGBTQ individual or samesex couple suitable as a foster or adoptive family for the child.
If you are aware of a violation or suspected violation of these nondiscrimination provisions, a complaint may be made via the Online Complaint Form accessible on the Department’s website.
For the avoidance of doubt, nothing in this Agreement shall require the Department to take adverse action against any CPA on the basis that such CPA has decided to accept or not accept a referral from the Department of a particular child for services under a contract with the Department.
Subject to Section 1, nothing in this Agreement shall affect the Department’s obligations, authority, or discretion to audit, train, diligently investigate, or vigorously enforce the terms of the Contracts or Subcontracts in accordance with applicable laws, rules, regulations, policies, court orders, and contract terms.
Subject to Section 1, the Department retains sole authority and sole discretion on all matters pertaining to all Contracts and Subcontracts, including without limitation all training, all aspects of investigating an alleged Contract or Subcontract Violation, determining whether a Contract or Subcontract Violation occurred, and all enforcement measures.
Subject to Section 1, nothing in this Agreement expands the Department’s obligation to monitor CPA compliance with Contracts and Subcontracts beyond that which is required under applicable law, rules, regulations, and policies.
This Agreement is intended for the direct benefit of the following individuals injured by a breach of this Agreement: (i) the Parties hereto, (ii) any LGBTQ individual or same-sex couple that seeks to foster a child accepted by a CPA for foster care case management services or adoption services under a Contract or Subcontract and the CPA is alleged to have committed a Contract Violation or Subcontract Violation directly involving the individual or couple, (iii) any LGBTQ individual or married same-sex couple that seeks to adopt a child accepted by a CPA for foster care case management services or adoption services under a Contract or Subcontract and the CPA is alleged to have committed a Contract Violation or Subcontract Violation directly involving the individual or couple, and (iv) any child accepted by a CPA for foster care case management services or adoption services under a Contract or Subcontract and the CPA is alleged to have committed a Contract Violation or Subcontract Violation directly involving the

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child. Each person described in subclauses (ii), (iii) and (iv) of the immediately preceding sentence shall be a direct third-party beneficiary of, and may, to the extent of their injury and ability to satisfy standing requirements, independently enforce the terms of this Agreement as if it were a party hereto.

Section 7.

In the event any Party or a third-party beneficiary asserts that another Party is not in compliance with one or more of its obligations in this Agreement, the Parties and any third-party beneficiaries shall address such alleged breach in good faith and act promptly in an attempt to resolve it. The asserting Party or third-party beneficiary shall provide the other Party with written notice of such assertion and a ninety (90) day opportunity to cure such noncompliance prior to taking legal action. Notice shall be made via certified mail, return receipt requested as follows:

Michigan Department of Health and Human Services State of Michigan Director, Bureau of Legal Affairs 333 South Grand Avenue Lansing, MI 48909 517.241.0048

American Civil Liberties Union Fund of Michigan
Jay D. Kaplan / Michael J. Steinberg 2966 Woodward Avenue Detroit, MI 48201 (313) 578-6823 jkaplan@aclumich.org msteinberg@aclumich.org

Section 8.

Specific performance shall be the sole and exclusive remedy available to each Party and each third-party beneficiary asserting any claim relating to the Department’s failure to meet its obligations under this Agreement. Each Party and each thirdparty beneficiary asserting any claim relating to the Department’s obligations under this Agreement waives all rights to recover any damage, loss, attorney fees, costs, or any other expense arising out of asserting such claims. The Parties also agree that, regardless of the failure of the sole and exclusive remedy, the Department will not be liable to any Party or third-party beneficiary asserting any claim relating to the Department’s obligations under this Agreement for any incidental or consequential damages of whatsoever kind or nature. The Parties intend the exclusion of incidental and consequential damages as an independent agreement apart from the sole and exclusive remedy herein. The limitations of this Section 8 apply only to claims relating to the Department’s obligations under this Agreement.

Section 9.

Upon signing this Agreement, Plaintiffs shall file a Stipulation of Voluntary Dismissal with Prejudice substantially in the form attached to as Annex A and submit a Proposed Order on Stipulation of Dismissal substantially in the form attached hereto as Annex B. This Agreement becomes effective upon entry of the Proposed Order on Stipulation of Dismissal by the district court.

Section 10. The Parties shall bear their own attorneys’ fees and costs associated with the Litigation.

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Section 11. The Parties understand that this Agreement is a public record that may be disclosed in response to a proper request under Michigan’s Freedom of Information Act.

Section 12.

The Parties acknowledge and agree that this Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without giving effect to conflict of laws, rules or statutes.

Section 13.

The Parties acknowledge, understand, and agree that they are entering into this Agreement knowingly, voluntarily, and of their own free will and volition, without coercion or undue influence.

Section 14.

Each Party has been represented by counsel and cooperated in the drafting and preparation of this Agreement. Hence, this Agreement shall not be construed against any Party on the basis that the Party was the drafter.

Section 15.

This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed to be an original instrument, but all such counterparts shall constitute one Agreement.

Section 16. The undersigned represent that they are authorized to sign this Agreement.

Section 17.

Each Party represents that they believe there is no state or federal law, rule, regulation, policy, contract term, or other obligation that prevents it from complying with its obligations under this Agreement; provided, that solely for purposes of this Section 17, the obligations in Section 1 shall be read without the introductory phrase “Unless prohibited by law or court order.”

Section 18.

This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No Party may assign this Agreement or any rights or obligations hereunder without the prior written consent of each other Party hereto.

Section 19.

No modification or waivers of any provision of this Agreement shall be valid or binding unless made in writing and signed by each Party or by a person authorized to sign on behalf of such Party.

[Signature Page Follows]

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Annex A Stipulation of Voluntary Dismissal with Prejudice

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; and REBECCA BUSK-SUTTON,
Plaintiffs,
v.
ROBERT GORDON, in his official capacity as the Director of the Michigan Department of Health and Human Services; and JENNIFER WRAYNO, in her official capacity as the Acting Executive Director of the Michigan Children’s Services Agency,

No. 2:17-cv-13080-PDB-EAS HON. PAUL D. BORMAN MAG. ELIZABETH A. STAFFORD
STIPULATION OF VOLUNTARY DISMISSAL
WITH PREJUDICE

Defendants,

and

ST. VINCENT CATHOLIC CHARITIES; MELISSA BUCK; CHAD BUCK; and SHAMBER FLORE,

Intervenor Defendants.

Plaintiffs Kristy Dumont, Dana Dumont, Erin Busk-Sutton, and Rebecca Busk-Sutton (collectively, “Plaintiffs”) and Defendants Robert Gordon and

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Jennifer Wrayno1 (collectively, “State Defendants”) file this stipulation of dismissal of the above-captioned action (the “Action”) under Rule 41(a)(2) of the Federal Rules of Civil Procedure. Plaintiffs and State Defendants state as follows:
On September 20, 2017, Plaintiffs filed the complaint in the Action with the U.S. District Court for the Eastern District of Michigan against the State Defendants. (ECF No. 1.)
On December 18, 2017, St. Vincent Catholic Charities, Melissa and Chad Buck, and Shamber Flore (“Intervenor Defendants”) moved to intervene in this case (ECF No. 18), which motion was granted on March 22, 2018. (ECF No. 34.)
On September 14, 2018, this Court denied in substantial part the motions to dismiss filed by State Defendants and Intervenor Defendants. (ECF No. 49 at 93.)
On September 17, 2018, the Court entered a schedule for discovery and briefing to “manage the progress of the case” (the “September 17 Scheduling Order”). (ECF No. 51 at 1.)
On October 31, 2018, all Parties jointly moved to modify the September 17 Scheduling Order. (ECF No. 61.) On November 2, 2018, this Court granted in part and denied in part that motion. (ECF No. 62.)
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, this stipulation reflects the substitution of Herman McCall, a party in his official capacity who has ceased to hold office during the pendency of the Action, for Jennifer Wrayno, who is “automatically substituted as a party.”

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On November 13, 2018, this Court issued an Amended Scheduling Order. (ECF No. 63.)
The Parties have engaged in substantial discovery, including the exchange of written discovery and document production.
On January 23, 2019, Plaintiffs and State Defendants moved this Court to stay proceedings as Plaintiffs and State Defendants actively worked to reach a resolution. (ECF No. 74.) On that same day, Plaintiffs filed a Joint Motion for Immediate Consideration of the Motion to Stay Proceedings. (ECF No. 75.)
On January 24, 2019, this Court granted in part Plaintiffs’ and State Defendants’ Joint Motion to Stay Proceedings, entering a thirty (30) day stay of proceedings. (ECF No. 76.)
On February 22, 2019, State Defendants moved this Court to stay proceedings as Plaintiffs and State Defendants actively worked to reach a resolution. (ECF No. 79.) On that same day, State Defendants filed a Motion for Immediate Consideration of the Motion to Stay Proceedings (ECF No. 80) and this Court granted State Defendants’ Motion to Stay Proceedings, entering a thirty (30) day stay of proceedings (ECF No. 81).
Plaintiffs and State Defendants have since entered into a Settlement Agreement, disposing of all claims asserted in the Action. An executed copy of the Settlement Agreement is attached hereto as Exhibit A. Intervenor Defendants,

Case 2:17-cv-13080-PDB-EAS ECF No. 82 filed 03/22/19 PageID.1458 Page 22 of 31
who have asserted no claims and against whom no claims have been asserted, are not party to the Settlement Agreement.
Plaintiffs and State Defendants have agreed that all costs and attorneys’ fees are the responsibility of the party incurring same. For the foregoing reasons, Plaintiffs and State Defendants respectfully request that the Court enter an order to dismiss all of Plaintiffs’ claims in the Action.

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Dated:

, 2019

Jay Kaplan (P38197) Michael J. Steinberg (P43085) American Civil Liberties Union
Fund of Michigan 2966 Woodward Avenue Detroit, MI 48201 Telephone: (313) 578-6823 jkaplan@aclumich.org msteinberg@aclumich.org
Daniel Mach American Civil Liberties Union
Foundation 915 15th Street NW Washington, DC 20005 Telephone: (202) 675-2330 dmach@aclu.org

Leslie Cooper American Civil Liberties Union
Foundation 125 Broad Street, 18th Floor New York, NY 10004 Telephone: (212) 549-2633 lcooper@aclu.org
Garrard R. Beeney Ann-Elizabeth Ostrager Jason W. Schnier SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004-2498 Telephone: (212) 558-4000 beeneyg@sullcrom.com ostragerae@sullcrom.com schnierj@sullcrom.com
Counsel for Plaintiffs

Case 2:17-cv-13080-PDB-EAS ECF No. 82 filed 03/22/19 PageID.1460 Page 24 of 31
Joshua S. Smith (P63349) Assistant Attorney General Attorneys for State Defendants Health, Education & Family Services Division P.O. Box 30758 Lansing, MI 48909 (517) 335-7603 Smithj46@michigan.gov
Counsel for State Defendants

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EXHIBIT A Settlement Agreement

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CERTIFICATE OF SERVICE

I hereby certify that, on March 22, 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record.

Dated:

, 2019

SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004-2498 Telephone: (212) 558-4000 ostragerae@sullcrom.com

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Annex B Proposed Order on Stipulation of Dismissal

Case 2:17-cv-13080-PDB-EAS ECF No. 82 filed 03/22/19 PageID.1464 Page 28 of 31

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

KRISTY DUMONT; DANA DUMONT; ERIN BUSK-SUTTON; and REBECCA BUSK-SUTTON,
Plaintiffs,
v.
ROBERT GORDON, in his official capacity as the Director of the Michigan Department of Health and Human Services; and JENNIFER WRAYNO, in her official capacity as the Acting Executive Director of the Michigan Children’s Services Agency,

No. 2:17-cv-13080-PDB-EAS HON. PAUL D. BORMAN MAG. ELIZABETH A. STAFFORD
[PROPOSED] ORDER ON STIPULATION OF DISMISSAL

Defendants,

and

ST. VINCENT CATHOLIC CHARITIES; MELISSA BUCK; CHAD BUCK; and SHAMBER FLORE,

Intervenor Defendants.

After considering the Stipulation of Voluntary Dismissal with Prejudice and the Settlement Agreement, attached thereto, provided by Plaintiffs Kristy Dumont, Dana Dumont, Erin Busk-Sutton, and Rebecca Busk-Sutton (collectively,

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“Plaintiffs”) and Defendants Robert Gordon and Jennifer Wrayno,1 it is hereby ORDERED that Plaintiffs’ claims in the above-captioned action (the “Action”) are dismissed with prejudice pursuant to the terms of the Settlement Agreement.
The Court retains jurisdiction over the enforcement of the Settlement Agreement in the Action. See Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381 (1994) (“If the parties wish to provide for the court’s enforcement of a dismissal-producing settlement agreement, they can seek to do so.”); RE/MAX Int’l, Inc. v. Realty One, Inc., 271 F.3d 633, 641 (6th Cir. 2001) (“[A] district court [has] the authority to dismiss pending claims while retaining jurisdiction over the future enforcement of a settlement agreement.”).
All costs and attorneys’ fees are the responsibility of the party incurring same.

Dated: [date]

_______________________________________ PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, this order reflects the substitution of Herman McCall, a party in his official capacity who has ceased to hold office during the pendency of the Action, for Jennifer Wrayno, who is “automatically substituted as a party.”

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CERTIFICATE OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on [date].
_______________________________________ Case Manager

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CERTIFICATE OF SERVICE
I hereby certify that, on March 22, 2019, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. Dated: March 22, 2019
/s/ Ann-Elizabeth Ostrager
SULLIVAN & CROMWELL LLP 125 Broad Street New York, NY 10004-2498 Telephone: (212) 558-4000 ostragerae@sullcrom.com