Academic journal article Notre Dame Law Review

Michigan's Religious Exemption for Faith-Based Adoption Agencies: State-Sanctioned Discrimination or Guardian of Religious Liberty?

Academic journal article Notre Dame Law Review

Michigan's Religious Exemption for Faith-Based Adoption Agencies: State-Sanctioned Discrimination or Guardian of Religious Liberty?

Article excerpt


April DeBoer and Jayne Rowse didn't plan to bring the fight for marital equality to the United States Supreme Court. In fact, the couple never set out to challenge Michigan's same-sex marriage ban. At least, not initially. (1)

The Michigan couple celebrated their union in 2008 with hopes that, one day, they would be able to legally marry. (2) As Michigan voters had approved an amendment (Michigan's Marriage Amendment, or the "MMA") to their state constitution that prohibited same-sex marriage four years earlier, (3) the couple put aside thoughts of marriage and focused on expanding their family.

As Ms. DeBoer and Ms. Rowse became more familiar with their state's adoption laws, they learned that Michigan, like many other states, does not permit two unmarried people to jointly adopt a child. (4) Unable to build their family together as a couple, Ms. DeBoer and Ms. Rowse individually adopted four children: Ms. Rowse adopted Nolan and Jacob while Ms. DeBoer adopted Rylee and Ryanne. (5) Though the couple raised all four of their children together as a cohesive family, each parent had no legal claim to the children her partner had adopted. (6) Like many similarly situated families, this legal technicality inhibited one parent from making routine medical decisions for her children, listing herself as an official "parent" on school records, and providing health insurance and financial support for the family, among other restrictions. (7) In the worst case scenario, unmarried same-sex couples' inability to jointly adopt their children could prevent one of them from making a life-altering medical decision for a child in the event of an emergency. (8)

Ms. DeBoer and Ms. Rowse realized that, should one of them pass away unexpectedly, "[a] judge could easily order any child adopted by a deceased parent to live with a distant relative or in foster care" rather than with their surviving mother. (9) In order to safeguard their family, Ms. DeBoer and Ms. Rowse decided to meet with an attorney to draw up guardianship papers. (10) To their dismay, the attorney advised them that, under Michigan law, guardianship papers would be virtually worthless. (11) Instead, she recommended that they file a federal lawsuit challenging section 24 of Michigan's Adoption Code on the grounds that they were denied joint adoption because they were not and could not be married. (12)

What began as a challenge to Michigan's Adoption Code radically changed course when a district court judge suggested that they amend their claim to take on Michigan's law banning same-sex marriage. (13) Ms. DeBoer and Ms. Rowse took the judge's advice and the suit went forward. (14) To the surprise of many, the United States District Court for the Eastern District of Michigan held that "the MMA impermissibly discriminate[d] against same-sex couples in violation ofthe Equal Protection Clause." (15) However, a mere eight months after the MMA was declared unconstitutional, same-sex marriages in Michigan and three other states were halted by the United States Court of Appeals for the Sixth Circuit, which held that the decision to limit marriage to heterosexual couples did not violate same-sex couples' due process and equal protection rights. (16)

The end of April DeBoer and Jane Rowse's story is now well known. In June 2015, the United States Supreme Court extended the fundamental right to marry to same-sex couples, and Obergefell v. Hodges (17) joined the ranks of historic cases like Brown (18) Loving, (19) and Roe. (20) Much like those cases, the Supreme Court's landmark decision did not bring an end to debate over the issue it had "resolved." As both ChiefJustice Roberts (21) and Justice Thomas (22) predicted in their dissenting opinions, the Court's holding has raised serious questions about religious liberty.

As April DeBoer and Jayne Rowse's experience demonstrates, most of the legal obstacles faced by gay couples hoping to expand their families through adoption stemmed from prohibitions on marriage. …

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