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. (23) Thatwas until Obergefell Barriers to same-sex adoption have been steadily falling over the past decade, (24) and, in the wake of the Supreme Court's decision, married couples are now able to adopt in every state. (25) However, there remains one pressing barrier to adoption for same-sex couples: "conscience clause" adoption laws enacted to allow faith-based adoption agencies to turn away prospective parents whose sexuality conflicts with their "sincerely held religious beliefs." (26) Though Ms. DeBoer and Ms. Rowse successfully broke down the walls inhibiting their own ability' to adopt, their home state of Michigan is one of seven states that have successfully enacted this modern barrier to adoption. (27) Just days before the Supreme Court's Obergefell decision, (28) Michigan Governor Rick Snyder signed three bills into law that allow adoption agencies to decline services to same-sex couples on religious grounds. (29)
This Note, in Part I, will begin with an overview of domestic adoption and an explanation of the most significant barriers same-sex couples hoping to adopt have traditionally faced. Part II will explore the falling barriers to same-sex adoption both before and after the Supreme Court's ruling in Obergefell In Part III, this Note will discuss the Obergefell decision and the case's immediate aftermath. Part IV will look at Boston, San Francisco, Washington, D.C., and Illinois, four jurisdictions where legislatures intentionally chose not to enact religious exemptions and faith-based adoption agencies closed their doors. Part V will go on to describe Michigan's religious exemption for faith-based adoption agencies, the justifications offered in support of the new law, and the arguments against it. Finally, Part VI of will analyze whether a viable challenge to Michigan's conscience clause exemption exists. Though it would undeniably be in the best interest of children to open all possible avenues to adoption, this Note will argue that challenges to Michigan's religious exemption for adoption agencies will fail. First and foremost, the new law is not discriminatory on its face, and there is not a federal or state law on which prospective plaintiffs could base their claim. Further, potential plaintiffs would have no caselaw to support an argument that they have a fundamental right to adopt a child. Finally, Michigan maintains the authority to regulate its adoption agencies and it had the power to enact this exemption under the First Amendment and its state constitution.
EXPANDING SAME-SEX FAMILIES
There are approximately 690,000 married and unmarried same-sex couples in the United States. (30) Of those nearly 1.4 million Americans, almost one-fifth are raising a child under the age of eighteen. (31) Same-sex couples with children are raising, on average, 1.7 children in their homes; as a result, there are more than 122,000 same-sex couple households raising approximately 210,000 children across the country. (32) Because married same-sex couples are generally more likely to have children than unmarried same-sex couples, those numbers will likely rise in the wake of the Supreme Court's Obergefell decision. (33)
There is not a singular story of how same-sex couples go about expanding their families. The vast majority of children who have gay or lesbian parents are born within the context of a heterosexual relationship. (34) Many lesbian couples pursue parenthood through artificial insemination, while many gay couples use surrogate parents. (35) Another large group of same-sex couples become parents through foster care and adoption. (36)
Adoption is "a creature of statute," and each state has the discretion to determine the contents of its adoption regulations and laws. (37) Though each state statute differs, the "governing standard in virtually all [jurisdictions] pertaining to the custody of a child... is a determination of what is in the child's 'best interests '" (38) For many years, state statutes and agency attitudes reflected the belief that it is not in a child's best interest to be adopted by a homosexual individual or a same-sex couple. Many states had statutes expressly prohibiting this class of Americans from adopting. (39) Even in the absence of an explicit law, a prospective parent's sexual orientation was a factor that was considered by many adoption agencies and that worked against them in placement decisions. (40)
One of the most widely agreed upon factors that plays into a "best interests" determination is the belief that it is best for a child to be raised by two parents in a committed relationship. (41) That widespread belief has led many states, including Michigan, to include a provision prohibiting joint adoption by an unmarried couple in their adoption statutes. (42) The partiality towards married couples also extends to states that have not codified their marital preference. Since statutes entrust individual placement decisions with adoption agencies and courts, "judges and agencies have discretion to combine virtually any combination of potentially influential factors" in order to determine which adoption placement is in a child's best interest. (43) Over time, this discretion has led to the creation of a strong preference for married couples over unmarried couples in child placement. (44) Before the right to many was extended to homosexuals by Obergefell, this strong preference was used by adoption agencies as a justification for denying same-sex couples access to adoption.
Given the historic discrimination against LGBT adoption applicants and the strong preference for placing children who are eligible for adoption with a married couple, many same-sex families could only pursue single-parent adoption. (45) As April DeBoer and Jayne Rowse realized, "that allow[s] only one parent to be recognized legally, and children could potentially be taken away from their families in the event of the illness, death, or...