The constitutional challenges to religious exercise continue.

Last fall, several plaintiffs represented by the American Civil Liberties Union sued in a federal court in Michigan to stop the Michigan Department of Human Affairs from allowing religiously affiliated adoption agencies to act according to their beliefs when placing children.

The complaint claims that this longtime practice violates the First Amendment of the Constitution. The plaintiffs argue that because institutions can choose to place children in accordance with their religious beliefs, Michigan has created a de facto “establishment” of religion. Accordingly, the plaintiffs contend, the state is imposing religious beliefs on those who do not share them.

St. Vincent Catholic Charities intervened in the case in December and moved to dismiss the complaint. The Michigan-based Catholic charity has been one of the most successful adoption agencies in finding families for children who need homes and is arguing just the opposite of the ACLU-represented plaintiffs:

To allow the state to interfere with an adoption agency’s sincerely held religious beliefs is itself a constitutional violation. Prospective adoptive families who qualify but whose criteria do not fit the guidelines of the religiously affiliated adoption agency they have applied to (such as unmarried or same-sex couples, in the case of Catholic adoption agencies) are not rejected from the system. No private adoptive agency could do that. Instead, as St. Vincent argues, the plaintiffs “are free to [adopt] with the many other agencies in Michigan.”

A decision against St. Vincent would likely cause it to close. In fact, as recent history shows, simply initiating a lawsuit like this one could cause irreparable damage and possibly lead to the closure of an agency that has changed lives for the better. 

Catholic Charities of Fort Worth, Texas may soon feel that sting. It is being sued in federal district court by a same-sex couple for discrimination.

In 2006, for example, Catholic Charities in Massachusetts had to cease its adoption activities because the state would not grant it a religious exemption to follow its faith-based beliefs. Such a result, of course, would be no help either to the plaintiffs or to the children here.

This case, Dumont v. Lyon, is simply another fault line between fundamentally different ways of looking at the Constitution. One side is arguing for religious freedom; the other is arguing for a principle of individual autonomy that can trump those rights.

In their motion to dismiss the case, which is still pending before the U.S. district court, the intervening defendants make three basic points. The first offers a historical perspective. As the defendants argue, the practice of having private religious adoption agencies help place students children is long-standing and, in many instances, precedes state involvement.

Many religious agencies were actually founded to make sure children were placed with families of the same faith. And these organizations often received government funding and legal protection to do so. The formal bureaucratic process in place now is in some respects a latecomer.

The second point made by St. Vincent is a legal argument. Partly because of this established history, the Supreme Court has never prohibited the “government from partnering with private religious organizations to serve the needy.”

The Constitution does not prevent the government from contracting with religious organizations to provide social services, and those organizations, of course, are free to follow the dictates of their faith when doing so. Such partnerships, if allowed equally to religious organizations of all kinds as well as nonreligious organizations, cannot “establish” a religion in violation of the First Amendment.

The third point is based on typical American pragmatism and compromise. The plaintiffs were qualified by the state to adopt, and several Michigan-based agencies are available to serve them.

In practice, agencies have routinely referred applicants to one another for various reasons, some religious and some not, and there are nonreligious adoption agencies or agencies that have particular expertise to which other agencies refer prospective qualified applications. In other words, the plaintiffs were and remain free to adopt, but selected applying at St. Vincent’s presumably because they knew they would be referred to another agency.

The plaintiffs have a seemingly powerful argument. Americans rightly do not like discriminatory policies, and, moreover, there is a strong national culture that allows for maximum ability to live as one chooses. But that is not the issue here.

Like the Masterpiece Cakeshop matter that argued before the Supreme Court in December, the issue is how to protect religious liberty — set out in the Constitution — when laws or regulations might force them to act contrary to those beliefs.

In good American fashion, Michigan has tried a commonsense policy to allow all kinds of applicants and also to protect religious liberty. The plaintiffs’ case seeks to destroy that practical solution for the common good. The court should see through this unconstitutional and ahistorical position.

Gerald J. Russello is editor of The University Bookman.