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Abstract

Historically, most of the legal obstacles faced by gay couples hoping to expand their families through adoption stemmed from prohibitions on marriage. That was until Obergefell. Barriers to same-sex adoption have been steadily falling over the past decade, and, in the wake of the Supreme Court’s decision, married couples are now able to adopt in every state. 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.” 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. Just days before the Supreme Court’s Obergefell decision, Michigan Governor Rick Snyder signed three bills into law that allow adoption agencies to decline services to same-sex couples on religious grounds.

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 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.

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