Ok. What we have here is a handful of Michigan Legislators who want to fantasize about what happens in the bedroom of two adults. First it was the marriage folks who claim that a single parent should not have the right to raise children. Then there are the parental rights people who believe that poverty and disability is the "governmental interest of the highest order" to deny a parent the right to raise a child.
Lest not forget the folks who believe parenting should theologically based and even based on the level of melanin of one's skin.
So now there is a movement in Michigan to add to the fitness category of parenting one's disability, religion, color of skin or sexuality.
There are three approaches to examine the constitutionality of banning gay couples the right to become foster and adoptive parents. Instead of beating the same old drum of the civil rights argument, I am going to begin with the dormant commerce clause argument.
The dormant commerce clause: Foster care is a federally funded program. People have a right to engage in business with government. Michigan Representative Kenneth Kurtz has introduced legislation that would exclude individuals from doing business with the state based upon what people may or may not do in the bedroom.
States do not have the power to regulate commerce of a federally regulated program. The case of Granholm v. Heald awakened the dormant commerce clause to let Michigan know that it cannot interfere with interstate commerce.
Is foster care interstate? Of course it is. Let's look at Michigan's powerpoint on the Interstate Compact on the Placement of Children.
Michigan Interstate Compact on the Placement of Children 2012
Since I believe I have made my point that HB 5763 and HB 5764 is unconstitutional as it violates the commerce clause, let us proceed to my second point of contention that the supporters of these Bills believe morality trumps the Constitution. THE PEOPLE OF THE STATE OF MICHIGAN ENACT: SEC. 5A 1 . THE DEPARTMENT SHALL NOT CONSIDER A CHILD PLACING 2 AGENCY'S OBJECTION TO PLACEMENTS THAT VIOLATE THE CHILD PLACING 3 AGENCY'S WRITTEN RELIGIOUS OR MORAL CONVICTIONS OR POLICIES IN ANY 4 SITUATION IN WHICH THE DEPARTMENT INTERACTS WITH THAT CHILD PLACING 5 AGENCY. THIS PROHIBITION INCLUDES, BUT IS NOT LIMITED TO, PLACEMENT 6 CONSIDERATIONS, FUNDING CONSIDERATIONS, CONTRACTING CONSIDERATIONS, 7 OR ANY OTHER AREAS IN WHICH THE DEPARTMENT MUST MAKE A 8 DETERMINATION INVOLVING A CHILD PLACING AGENCY. Gay foster youth: If a child placing agency decides, as a conscience choice, not to place a gay youth, then is it true a child placing agency can decide not to place a gay youth back with the family under similar reasoning of personal morality? Would this mean CPS can remove a child based upon the sexual orientation of the biological parent or relative? What an evil message our elected officials are sending to our youth. Disabilities: Instead of going into details, I encourage everyone to read this groundbreaking report from the National Council on Disabilities. Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children. Parents with mental or physical challenges are having their children removed and being denied placement based upon what the Child Placing Agencies are calling a moral and conscience decision. Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children I object to this Bill based upon my moral convictions to not interfere in commerce.
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