Moving quickly this week, the Michigan legislature passed, and Governor Rick Snyder signed into law, an act that allows private faith-based adoption and foster care agencies to decline services to applicants that are not aligned with the agency's world view. The act, House Bill 4188, thus allows such agencies to refuse services to same-sex or unmarried couples.

Perhaps because the authors knew their bill would be subjected to strict scrutiny, enacted on the very eve of the SCOTUS' same-sex adoption and marriage cases, the preamble clearly lays out critical constitutional distinctions between private and state action. The act declares private agency placement decisions to be outside the scope of state action; the act declares private faith-based agencies free to make decisions pursuant to their stated mission.

Critics point out that Governor Snyder signed the bill into law after it sailed through both House and Senate, and after it was swiftly placed on the legislative agenda at the "last minute", apparently without notice. The ACLU has already conducted press conferences to announce they are seeking well-positioned litigants to challenge the new law.

If any of the private faith-based agencies receive public funding or assistance, a constitutional challenge could be mounted, especially if the SCOTUS declares a constitutional right to marry regardless of gender. Without the public funding component, however, it would appear that private agencies would be free to make adoption referrals consistent with their faith-based missions.

Examination of the State of Michigan's fiscal budget for the current year reveals that nearly $20 million was spent on adoption and foster care agencies; about half of the funding allocation supported private agencies. Proponents of the bill assert that its passage was necessary in order to prevent the faith-based agencies from closing their doors rather than provide services to folks they deem to be unworthy.

Considering that current state practice allows an agency to decline services for any reason, this legislation seems preemptive in nature; perhaps to ward-off attempts to adopt by same-sex couples following a prospective [and somewhat anticipated] win in the DeBoer case.  When introducing the new law, the Governor even acknowledged he expected litigation to flow from its implementation.

We shall see how all of this plays out in light of the much-anticipated DeBoer decision expected as soon as next week.

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