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Michigan Model for South Dakota’s Adoption-Discrimination Bill Challenged in Court

No one has sued South Dakota yet for its discriminatory 2017 Senate Bill 149, now SDCL 26-6-36 through 26-6-50, which allows private adoption agencies to invoke their religious beliefs to discriminate against prospective parents for being transgender, homosexual, divorced, never married, or lazy on Sunday mornings. But the Michigan statute on which South Dakota’s discriminatory law is based is going to court, thanks to the ACLU and Kristy and Dana Dumont:

Kristy and Dana Dumont, plaintiffs in the case, were turned away from two local adoption agencies in Ingham County in July 2016 and March 2017. “We wanted to adopt out of foster care in our local community so it would be the least disruptive for the kid,” Kristy said on a conference call announcing the lawsuit today. “We wouldn’t want to take them away from family…and we would want them to stay connected with friends.” In calls with the agencies, Kristy explained, “They both said no, and that this is not their practice to place children with same-sex families” [Ashley Dejean, “Michigan Just Got Hit With a Lawsuit for Letting Adoption Agencies Discriminate Against Gay People,” Mother Jones, 2017.09.20].

Three other plaintiffs are listed on the complaint filed last Wednesday in federal court in Michigan. Both of the lesbian couples listed as plaintiffs were turned down for services by Bethany Christian Services, which sent Troy Cumings from its national office in Michigan to help lobby for SB 149 in South Dakota.

The Michigan statute includes “findings”—i.e., superfluous rhetoric writing political arguments into state law—that declare that, even though the state’s paramount goal is to place every child who needs one in a “safe, loving, and supportive home,” there are 105 licensed adoption and foster care agencies in the state, so it’s o.k. to let some of them engage in religious discrimination. South Dakota has five organizations with thirteen licensed agencies, and almost every one of them is religious. South Dakota’s law leaves prospective parents who don’t meet certain religious tests with minimal adoption options.

However many agencies are available, the plaintiffs contend that turning away willing parents, gay or straight, runs counter to the state’s declared interest in giving children good homes:

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 [Complaint, Dumont, Dumont, Busk-Sutton, Busk-Sutton, & Ludolph v. Lyon and McCall, Case No. 17-cv-13080, U.S. District Court for the Eastern District of Michigan, Southern Division, 2017.09.20].

Watch this Michigan case for hope that we can reverse South Dakota’s grim turn toward state-sanctioned religious discrimination.


  1. Donald Pay 2017-09-25

    What is the law regarding whether these agencies can discriminate against gay children being considered for adoption services? Could they say to a child that you are not worthy of adoption from our agency because you are gay or transgender? Does South Dakota law deal with that situation? If not, why not?

  2. Donald Pay 2017-09-25

    The way I read the law, the agency could refuse to place a gay child in a loving home of either gay or straight parents. Is that right? That would mean that a gay child would be forever condemned to be without parents. The statutes create two classes of children by law and strips gay children of any right to be adopted and have a family. Let’s just reinstitute slavery, which also had a “religious” basis concocted for it.

  3. Darin Larson 2017-09-25

    .3% for education funding increases but whatever it takes to fight for unconstitutional laws as part of a culture war that they have already lost. Welcome to South Dakota!

  4. grudznick 2017-09-25

    Mr. Pay, doesn’t the law refer to parents who might be gay? It is insane that these overgodding organizations are allowed to discriminate with the powers they have, but how would they know if a baby was gay? I think it means they might not put a kid with a family of a different religion or if they weren’t “pure” enough for the organization, does it not?

  5. Donald Pay 2017-09-25

    I don’t know, Grudz. I’m thinking out loud here. I don’t see where it is restricted to parents, but maybe I’m wrong. Sure, if these are all babies, there probably wouldn’t be an issue. What if there is an older child who has indicated he or she prefers to be considered of a different sex than he or she was born, or is gay? The law, as I read it, would allow that agency to not carry out any adoption for the child, because of some religious objection.

    Let’s say the child is 16, is gay, and has a heterosexual couple willing to adopt. How does the agency act in that case? Does it have a right under the law to reject that adoption because the child is gay? If not, consider the situation where that kid is now just two years older, in a gay marriage and wants to adopt. The moral relativism here seems rather strange. If you can’t accept all God’s children, including gays or transgenders as they come, as Jesus taught, then maybe you ought not be calling yourself Christian. You might be some other religion, but you ain’t Christian.

  6. grudznick 2017-09-25

    I see your point, Mr. Pay, but it seems a stretch. These religious outfits would probably want to put a 16-yr-old child with a heterosexual couple, but not with a gay couple. And just stiffing some poor gay kid by relegating her to a complete childhood of orphanism is just cruel and very un-Christian like.

    But, I still think the law is directed at setting up discrimination against parents who are gay or atheist more than at the children who are gay or atheist, or even agnostic as children are wont to be.

  7. mike from iowa 2017-09-26

    Religious freedom in everyday life is BS! Claiming religious freedom as an excuse to discriminate is BS! And the people that dreamed this up are BS!

  8. Cory Allen Heidelberger Post author | 2017-09-27

    Donald, interesting question about discriminating against gay children. SB 149 speaks of providing information to “the applicant” to whom it is denying services; that suggests the law is looking solely at parents applying to adopt. Children won’t be “applicants” in this process, so by that legal unwinding, I’d say this law does not provide for discriminating against children. However, that’s a thin safety net.

    If we’re talking babies, it would be hard to establish any evidence of religious disqualification in a child. Some church agency might decide Scripture tells it not to work with non-white babies, but Section 7 of SB 149 specifically forbids using this law as an excuse to discriminate against race, national origin, or ethnicity.

  9. Darin Larson 2017-09-27

    Michigan and South Dakota don’t hold a candle to Alabama when it comes to supporting discrimination. Last night Roy Moore, the Steve Bannon backed candidate for US Senate, beat Luther Strange, the candidate Trump and McConnell had backed . Roy Moore was twice kicked off the Alabama Supreme Court:

    “Moore was elected to the position of Chief Justice of the Alabama Supreme Court in 2001, but removed from his position in November 2003 by the Alabama Court of the Judiciary for refusing to remove a monument of the Ten Commandments commissioned by him from the Alabama Judicial Building, despite orders to do so by a federal court. . . . Moore was again elected Chief Justice in 2013, but was suspended in May 2016, for directing probate judges to continue to enforce the state’s ban on same-sex marriage despite the fact that it had been overturned.” Wikipedia, Roy Moore.

    Moore has also said that the 9/11 attacks were a punishment from God and wrote an op/ed entitled “Muslim Ellison should not sit in Congress.”

  10. Darin Larson 2017-09-27

    From CNN on Roy Moore and his views on same-sex parents:

    A child custody case in 2002 was less of a national cause célèbre, but Moore used the outcome, and his concurrence, to author a vicious attack on same-sex parents.
    “I write specially to state that the homosexual conduct of a parent — conduct involving a sexual relationship between two persons of the same gender — creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others,” he said in one of the opinion’s more tame passages.
    In others, Moore labeled “homosexual conduct” by parents as being “detrimental to the children,” writing that it “is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this nation and our laws are predicated.”

  11. Mr. Lansing 2017-09-27

    Cory, your sentence “If we’re talking babies, it would be hard to establish any evidence of religious disqualification in a child.” birthed a question. Do Catholic adoption agencies demand that the adopted baby be raised in the Catholic church? I know from family experience that when a non-Catholic woman marries a Catholic man, to be sanctioned by the church the woman must agree to raise the children as Catholics. A female relative of mine agreed to this. Her husband died leaving young children and an infant and the pressure to raise the kids in Catholicism was enormous and quite overbearing to the woman’s right to choose. Nearly every Catholic in the town put social and financial pressure on her.

  12. Cory Allen Heidelberger Post author | 2017-09-27

    Porter, I’m not sure what the Catholic agencies say, but I recall from our conversation with Troy that part of the motivation for SB 149 was to help Catholic agencies raise money from donors who will only support them if they are promoting placement of children in good Catholic families. And of course, with the explicit protection of SB 149, Catholic adoption agencies could place such demands on prospective parents or show them the door without a baby.

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