By Zachary Gorchow
President of Michigan Operations
Posted: April 16, 2019 3:37 PM

One of the old axioms around the Capitol when it comes to legislation is "there will be unintended consequences."

There are too many examples to recite, but I recall one from when I worked for the Redford Observer under the tutelage of then-Editor Jeff Counts (who died suddenly this week and would recall this example well) when the Legislature put a prohibition in the Department of Transportation budget on mowing grass within state trunklines in townships as a money-saving move. The change overall was a success – it saved gasoline money on needlessly mowing grass on rural highways and was great for wildlife. Except in an urban township like Redford, where the change caused small patches of grass along I-96 to become eyesores growing six feet high.

But I don't think I've ever seen an unintended consequence quite like what might have occurred in the statute, PA 53 of 2015, ostensibly designed to codify a long-time state practice involving the children under its supervision that allowed the adoption agencies with which it contracts to refuse to work with a prospective parent if doing so would violate a sincerely held religious belief. The policy, and law that followed it, was designed to allow the agencies affiliated with the Catholic Church or another denomination opposed to same-sex marriage to refuse services to potential parents who are lesbian, gay, bisexual or transgender.

At the time, supporters championed it as assuring religious freedom. Opponents denounced it as shameful discrimination against LGBT persons. News organizations, including this one, all reported that it would achieve its designed objective – statutorily allow adoption agencies to deny services for children under state supervision because of a sincerely held religious belief.

But the American Civil Liberties Union of Michigan noticed something when it filed its lawsuit against the state challenging the policy – indeed, it challenged the policy the Department of Health and Human Services had at the time, not the new law. The new law defined "services" as "any service that a child placing agency provides, except foster care case management and adoption services provided under a contract with the department."

Wait, what?

Read literally, the definition appears to excise adoptions provided by the agencies with which the state contracts from the definition of services. That, in effect, renders the whole purpose of the law null, the ACLU contends, because it means the very agencies seeking protection for their sincerely held religious beliefs are not providing services as defined in the law.

Then there's the paragraph that follows the definition of services: "If the department makes a referral to a child placing agency for foster care case management or adoption services under a contract with the 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."

If "services" doesn't include those with contracts for foster care and adoption services, does the law still achieve its goal? This seems like one of those paradoxes Doc Brown warned about in "Back to the Future" that could cause a chain reaction that would unravel the very fabric of the space-time continuum.

But, but, but…

The bill in question added two sections, and the bill clearly states the "services" definition only applies to the section providing protections for sincerely held religious beliefs for adoption agencies who do not have state contracts. It is the other section, the one which the "services" definition does not appear to apply, that contains the portion quoted above about how child placing agencies with a state contract can refuse services based on a sincerely held religious belief.

The ACLU, in its initial complaint, noted that some were interpreting PA 53 as allowing adoption agencies to refuse referrals from the state because of a sincerely held religious belief, and kept the focus of the lawsuit on DHHS policy that did the same thing. Those involved in the drafting of PA 53 have been incredulous at the ACLU's interpretation and confident the law does in fact do what it set out to do.

However, because the lawsuit filed Monday challenging the state's new policy on this front did not claim a violation of PA 53, there may not be a definitive resolution – unless the state or any other intervening parties cite PA 53 in defense of its position.