Dumont v. Lyon (341 F. Supp. 3d 706, 2018)

PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

Plaintiffs filed their 42 U.S.C. § 1983 Complaint challenging Defendants Nick Lyon (sued in his official capacity as the Director of the Michigan Department of Health and Human Services "DHHS") and Herman McCall's (sued in his official capacity as the Executive Director of the Michigan Children's Services Agency "CSA") practice of permitting state-contracted and taxpayer-funded child placing agencies to use religious criteria to screen prospective foster and adoptive parents for children in the foster care system. Plaintiffs are prospective adoptive same-sex couples and individuals who have contacted certain faith-based Michigan adoption agencies and, based upon their same-sex status, been denied the state-contracted-for services to process their papers necessary for consideration for child placement by all adoption agencies. Plaintiffs allege that the refusal of these faith-based agencies to consider them as prospective adoptive parents violates their rights protected by the Establishment Clause of the First Amendment to the United States Constitution and also violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. Plaintiffs seek a declaratory judgment that these practices violate the First and Fourteenth Amendments and seek an Order enjoining Defendants Lyon and McCall, in their official capacities, from contracting with or providing taxpayer funding to private child placing agencies that exclude same-sex couples from consideration as foster or adoptive parents or otherwise employ religious criteria in the screening of prospective foster and adoptive parents.

The Court has granted the motions of the Intervenor Defendants, St. Vincent Catholic Charities, Melissa Buck, Chad Buck, and Shamber Flore to intervene in this action. (ECF Nos. 31, 34.) The State Defendants and the Intervenor Defendants now move to dismiss the Plaintiffs' Complaint. (ECF Nos. 16, 19.) The Court also accepted and has considered (as appropriate to the stage of proceedings) the Group of 53 Michigan Legislators' Amicus Brief. (ECF No. 26.) The Court held oral argument on July 12, 2018, on both motions to dismiss. For the reasons that follow, the Court DENIES Defendants' motions to dismiss except that the Court GRANTS the motion to dismiss Plaintiff Jennifer Ludolph's claims for lack of standing.

I. FACTUAL BACKGROUND

Plaintiffs allege that the DHHS is responsible for the approximately 13,000 children who are in the State's foster care system because they have been removed from their families by the State due to abuse or neglect or otherwise have become wards of the State. The State is responsible for finding these children appropriate foster and adoptive families to care for them. (Compl. ¶ 2.) According to the allegations of the Complaint, the DHHS contracts out public adoption and foster care services to private agencies and pays these agencies with taxpayer funds to perform this government function. Some of these agencies refuse to accept prospective families headed by same-sex couples or to place children with families headed by same-sex parents based upon the agency's religious beliefs. DHHS has not prevented the agencies from engaging in this conduct. (Compl. ¶ 3.)

Plaintiffs Kristy and Dana Dumont and Erin and Rebecca Busk-Sutton are two prospective adoptive families that were turned away by state-contracted and taxpayer funded child placing agencies based on those agencies' religious objections to same-sex couples. Plaintiffs allege that these couples are ready, willing, and able to provide a "forever family" to children in the foster care system. Plaintiff Jennifer Ludolph was in the Michigan foster care system when she was a teenager and, as a taxpayer, she objects to taxpayer dollars funding child-placing agencies that turn away qualified families because of the agencies' religious objections to those families. The Complaint alleges that all Plaintiffs are Michigan taxpayers who object to their taxpayer dollars being used to pay for public child welfare services that are provided based on religious standards rather than professional child welfare standards and object to the use of taxpayer funds to underwrite and endorse religious beliefs to which they do not subscribe. Plaintiffs allege that their claims concern only the State's provision of taxpayer-funded government services based on religious and discriminatory criteria and do not challenge any private agency's provision of private adoption services or use of non-public funds. (Compl. ¶¶ 5-8.)

A. Plaintiffs' Allegations Regarding Michigan's Child Welfare System

According to the allegations of the Complaint, in a typical case the state Child Protective Services removes a child from a home for abuse or neglect and a court orders that the child be placed into foster care. If a child ultimately cannot be reunited with his or her parents and parental rights are terminated, DHHS seeks to find a permanent family for the child, typically through adoption. DHHS's responsibilities for such children include recruiting and identifying appropriate families to care for the children, either temporarily as foster parents or permanently as adoptive families. According to the allegations of the Complaint, DHHS performs this public function in part by contracting with private agencies that are licensed by DHHS's Division of Child Welfare Licensing ("DCWL") as "child placing agencies" to recruit, screen, train, and license prospective foster and adoptive parents and to place children in appropriate foster or adoptive homes, as authorized by Michigan statute, Mich. Compl. Laws §§ 722.11(1)(c), 722.115(3), 722.922. Plaintiffs allege that, although DHHS retains ultimate supervisory responsibility in all cases, much of the on-the-ground foster care and adoption work is performed by taxpayer-funded child placing agencies. (Compl. ¶¶ 24-25.)

Plaintiffs allege that through rulemaking authorized by statute, DHHS has conferred authority on child placing agencies to make decisions regarding licensing foster parents and certifying adoptive parents, as well as placement of children into foster and adoptive homes. According to the allegations of the Complaint, child placement agencies have an obligation to maintain ongoing recruitment programs "to ensure an adequate number of suitable and qualified homes" to meet the needs of the children served by the agency. Under these administrative rules, agencies have substantial discretion in evaluating applicants as well as selecting appropriate placements for children into foster or adoptive homes. (Compl. ¶ 26, citing Mich. Admin. Code R. 400.12301(1), 400.12701, 400.12304(1), 400.12706, 400.12404, 400.12709.)

Plaintiffs allege that after an agency accepts a child's case from DHHS, it immediately begins receiving per diem compensation from the State. For example, the Complaint alleges, some agencies receive at least $40 per day from the State for each adoption case they handle. These payments cease after a child is permanently placed and the agencies receive a lump-sum payment after placement depending on the outcome of the case. (Compl. ¶ 27.) According to the allegations of the Complaint, to fund the state's welfare system, the Michigan legislature annually makes appropriations for adoption and foster care services and the DHHS utilizes these appropriated funds to pay private child placing agencies under contract with the State to provide foster care and adoptive services. Plaintiffs allege that the DHHS has entered into adoption and foster care service contracts with over 100 private child placing agencies statewide, operating in multiple counties, many of whom are religiously affiliated. (Compl. ¶¶ 28-30.)

According to the allegations of the Complaint, the contracts entered into between DHHS and child placing agencies require the contracting agencies to comply with DHHS's non-discrimination statement, which mandates that agencies "will not discriminate against any individual or group because of race, sex, religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs or disability." This requirement, Plaintiffs allege, "applies to all applications filed for adoption of [DHHS] supervised children, including [DHHS] supervised children assigned to a contracted agency." The contracts also require each contracting agency to "develop and implement a plan for adoptive home recruitment, retention, and support consistent with" DHHS's licensing standards applicable to the agency's license. (Compl. ¶¶ 31-32.)

Plaintiffs allege that families interested in fostering or adopting a child out of the foster care system must submit an application for a foster care license or to be certified to adopt. Each private child placing agency maintains a roster of families that it has licensed or certified that it generally uses for family placements for children assigned to its care. According to the allegations of the Complaint, the eligibility requirements for families interested in adopting from the foster care system are provided in the DHHS Adoption Program Statement, also known as Publication 255, which provides the same non-discrimination provision as the contracts with the child placing agencies and also state that "[t]he eligibility criteria for adoption of [DHHS]-supervised wards must not be more restrictive than the criteria in DHS Publication 255 when a contracted adoption agency is providing DHS adoption services." DHHS is contractually obligated to terminate its agreement with a child placing agency if the agency "[e]ngages in any conduct that may expose [DHHS] to liability" or "fails to cure a breach" of the agreement after receiving notice, and DHHS retains the right to terminate the agreement immediately "without penalty and for any reason." (Compl. ¶¶ 33-36.)

Plaintiffs allege that, although DHHS is aware that certain child placing agencies have refused to accept same-sex couples for processing necessary to foster or adopt children in the child welfare system, DHHS has not taken any remedial action under its contracts against any agency for failure to abide by the DHHS non-discrimination statement or Publication 255, or the United States Constitution. (Compl. ¶ 37.)

B. Plaintiffs' Allegations Regarding 2015 Michigan House Bills Nos. 4188, 4189, and 4190

For years, according to the allegations of the Complaint, some private agencies providing foster care and adoption services under contract with the State have refused to process same-sex couples seeking to qualify as foster or adoptive parents because of the agencies' religious beliefs. Starting as early as 2013, according to Plaintiffs' Complaint, members of the Michigan legislature attempted to introduce legislation that would codify and authorize the practice of permitting agencies to turn away same-sex couples on the basis of religious objection. Those early efforts at passing legislation did not succeed. In the 2015-2016 Legislative session, Michigan House Bills 4188, 4189, and 4190 presented the issue again. According to the allegations of the Complaint, during a hearing before the House on February 18, 2015, the director of clinical services at Intervenor Defendant St. Vincent confirmed that the organization would not work with gay and lesbian prospective parents, explaining that when prospective parents to whom they were religiously opposed approached them: "If they let us know that they're unmarried, or they're gay or lesbian, we immediately recommend, make a referral to another agency." Allegedly the President of another faith-based agency, Bethany, asserted that to require Bethany to adhere to principles of non-discrimination would present them with "an untenable choice" of "choos[ing] between their desire to help children and families and their fidelity to their religious principles." The President of Bethany stated that "House Bills 4188-4190 are necessary" to "codify into state law what has been in practice," and threatened that "if statewide policy changes in a way that would force Catholic agencies to choose between violating strongly held religious beliefs or ceasing cooperation with the state, the agencies will cease to cooperate." Plaintiffs also allege that the President and CEO of the Michigan Catholic Charities also weighed in on the issue by letter to Governor Rick Snyder stating that Catholic agencies "handl[e] approximately twenty percent of the active foster care and adoption cases in Michigan," and expressed concern that there were objections to "the religious manner by which faith-based child placement agencies operate." (Compl. ¶¶ 38-43, 45-46.)

According to the allegations of the Complaint, the Michigan House of Representatives passed the Bills in March, 2015 and on June 10, 2015, the Michigan Senate passed the bills, which were signed into law the following morning by Governor Snyder as 2015 Public Acts 53, 54, and 55, codified at Mich. Comp. Laws § 400.5a, 722.124c, 722.124f, and 710.23g. (Compl. ¶¶ 44, 47.) The statutes provide in relevant part that, "[t]o the fullest extent permitted by state and federal law, a child placing agency shall not be required to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency's sincerely held religious beliefs." Mich. Comp. Laws § 722.124e(2). Additionally, the statute provides that, "[t]o the fullest extent permitted by state and federal law, the state or local unit of government shall not take an adverse action against a child placing agency on the basis that the child placing agency has declined or will decline to provide any services if those services conflict with, or provide any services under circumstances that conflict with, the child placing agency's sincerely held religious beliefs." Id. § 722.124e(3). Under the statute, "services" are defined to "include[ ] any service that a child placing agency provides except foster care case management and adoption services provided under a contract with [DHHS]." Id. § 722.124e(7)(b). The Plaintiffs allege that some child placing agencies have interpreted these statutes as permitting taxpayer-funded state-contracted child placing agencies to turn away prospective families for children in foster care based on religious criteria and the State has allowed this practice to occur. (Compl. ¶¶ 48-49.)

C. Plaintiffs' Allegations Regarding Harm to Children Resulting From the Defendants' Authorization of Religious-Based Exclusions by Child Placing Agencies

Plaintiffs allege that there is a shortage of foster and adoptive families in Michigan and that as a result of this shortage, some children in State custody have and may continue to have multiple temporary placements before a suitable permanent home is found while other children may have to be separated from their siblings or placed in foster homes far from their school and community and other children may have to be placed in group homes and may reach the age of majority without ever being placed with a permanent family. (Compl. ¶¶ 51-52.) Plaintiffs allege that each time a prospective parent who is able to provide a loving and caring family for a child is turned away by a child placing agency because of a religious objection to their sexual orientation (or any other religious objection) the pool of families available for the children in the system diminishes, reducing children's option for placement. (Compl. ¶ 53.)

According to the allegations of Plaintiffs' Complaint, every major professional organization dedicated to children's welfare, including the Child Welfare League of America, the National Association of Social Workers, the National Adoption Center, the American Psychological Association, the American Psychiatric Association, the American Academy of Family Physicians, the American Academy of Pediatrics, and the American Medical Association, affirmatively states that gay and lesbian parents are as likely as heterosexual parents to provide supportive and healthy environments for their children and opposes any discrimination based on sexual orientation in matters of adoption and foster care. Plaintiffs allege that the loss of these potentially qualified families exacerbates the shortage of potential foster and adoptive families, resulting in greater costs to the State welfare system and the result that some children who otherwise would be matched with a loving same-sex family may be denied the family that best matches their individual needs. (Compl. ¶¶ 54-56.)

II. LEGAL STANDARDS

A. Standing: Fed. R. Civ. P. 12(b)(1)

Article III of the United States Constitution defines the power of federal courts and restricts that power to resolving "cases or controversies." A plaintiff who lacks standing does not present a case or controversy. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ("[T]he core component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III."). " 'The party invoking federal jurisdiction bears the burden of establishing these elements.' " Parsons v. U.S. Dept of Justice , 801 F.3d 701, 710 (6th Cir. 2015). "At the pleading stage, general factual allegations of injury resulting from the defendant's conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim." Parsons , 801 F.3d at 710 (quoting Lujan , 504 U.S. at 561, 112 S.Ct. 2130 ). "When considering whether pleadings make out a justiciable case for want of standing, our analysis must be confined to the four corners of the complaint." Id. at 706.

However, since the elements necessary to establishing standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. Thus, while the Court may accept as true the general allegations of the Plaintiffs' Complaint regarding these elements at the pleading stage, Plaintiffs must, at later stages of the litigation, support these allegations with the "manner and type" of evidence demanded at those later stages. Id. Plaintiffs must demonstrate standing separately for each claim they assert. DaimlerChrysler Corp. v. Cuno , 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006) ("[A] plaintiff must demonstrate standing for each claim he seeks to press.").

B. Failure to State A Claim: Fed. R. Civ. P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows for the dismissal of a case where the complaint fails to state a claim upon which relief can be granted. When reviewing a motion to dismiss under Rule 12(b)(6), a court must "construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff." Handy-Clay v. City of Memphis , 695 F.3d 531, 538 (6th Cir. 2012). To state a claim, a complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "[T]he complaint 'does not need detailed factual allegations' but should identify 'more than labels and conclusions.' " Casias v. Wal-Mart Stores, Inc. , 695 F.3d 428, 435 (6th Cir. 2012) (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The court "need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference." Handy-Clay , 695 F.3d at 539 (internal citations and quotation marks omitted). In other words, a plaintiff must provide more than a "formulaic recitation of the elements of a cause of action" and his or her "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555-56, 127 S.Ct. 1955. The Sixth Circuit has recently that "[t]o survive a motion to dismiss, a litigant must allege enough facts to make it plausible that the defendant bears legal liability. The facts cannot make it merely possible that the defendant is liable; they must make it plausible." Agema v. City of Allegan , 826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

In ruling on a motion to dismiss, the Court may consider the complaint as well as (1) documents that are referenced in the plaintiff's complaint and that are central to plaintiff's claims, (2) matters of which a court may take judicial notice (3) documents that are a matter of public record, and (4) letters that constitute decisions of a governmental agency. Thomas v. Noder-Love , 621 F. App'x 825, 829 (6th Cir. 2015) ("Documents outside of the pleadings that may typically be incorporated without converting the motion to dismiss into a motion for summary judgment are public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.") (Internal quotation marks and citations omitted); Armengau v. Cline , 7 F. App'x 336, 344 (6th Cir. 2001) ("We have taken a liberal view of what matters fall within the pleadings for purposes of Rule 12(b)(6). If referred to in a complaint and central to the claim, documents attached to a motion to dismiss form part of the pleadings.... [C]ourts may also consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies."); Greenberg v. Life Ins. Co. Of Virginia , 177 F.3d 507, 514 (6th Cir. 1999) (finding that documents attached to a motion to dismiss that are referred to in the complaint and central to the claim are deemed to form a part of the pleadings). Where the claims rely on the existence of a written agreement, and plaintiff fails to attach the written instrument, "the defendant may introduce the pertinent exhibit," which is then considered part of the pleadings. QQC, Inc. v. Hewlett-Packard Co. , 258 F.Supp.2d 718, 721 (E.D. Mich. 2003). "Otherwise, a plaintiff with a legally deficient claim could survive a motion to dismiss simply by failing to attach a dispositive document." Weiner v. Klais and Co., Inc. , 108 F.3d 86, 89 (6th Cir. 1997).

III. ANALYSIS

Standing must be demonstrated separately as to each claim of the Complaint. DaimlerChrysler , 547 U.S. at 352, 126 S.Ct. 1854. The Dumonts and the Busk-Suttons ("the Prospective Parent Plaintiffs") claim that they have standing to bring both their Equal Protection and Establishment Clause claims based upon "being turned away" by certain faith-based child placing agencies when they sought to adopt. (ECF No. 28, Pls.' Resp. to State Defs.' Mot. 9-10, PgID 641-42.) All Plaintiffs, including Ms. Ludolph, claim to separately have standing to bring their Establishment Clause claims as Michigan taxpayers based upon "the disbursement of taxpayer funds spent under Michigan's statutory child welfare system." (Id. at 10, PgID 642.)

A. The Prospective Parent Plaintiffs Have Adequately Alleged General Article III Standing for Their Establishment Clause and Equal Protection Claims.

The Prospective Parent Plaintiffs claim to have general Article III standing to bring both their Equal Protection and Establishment Clause claims based upon their allegation that they contacted certain "state-contracted" child placing agencies and were turned away because of the agencies' religious objections to same-sex couples. (ECF No. 28, Pls.' Resp. to State Defs.' Mot. 9.)

In order to establish Article III standing for either their Equal Protection or their Establishment Clause claims, Plaintiffs must establish the following elements:

First, Plaintiff must have suffered an injury in fact-an invasion of a legally-protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Parsons , 801 F.3d at 710 (quoting Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130 ). "The injury must be to a legally cognizable right." Id.

1. The Prospective Parent Plaintiffs have adequately alleged injury-in-fact.

Here the Prospective Parent Plaintiffs assert Equal Protection and Establishment Clause violations and claim "both stigmatic and practical injuries" allegedly stemming from the "barrier to adopting a child out of the state-run foster care system," which Plaintiffs allege "were caused by the State of Michigan and are redressable by this Court." (Pls.' Resp. to State Defs.' Mot. 1-2.) "Stigmatization also constitutes an injury in fact for standing purposes." Parsons , 801 F.3d at 712 (citing Heckler v. Mathews , 465 U.S. 728, 739-40, 104 S.Ct. 1387, 79 L.Ed.2d 646 (1984) ). "[A] claim of stigmatic injury, or denigration, suffered by all members of a [ ] group," i.e. "abstract stigmatic injury," is not "judicially cognizable" for purposes of standing. Allen v. Wright , 468 U.S. 737, 754, 756 n. 22, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), abrogated on other grounds in Lexmark Int'l, Inc. v. Static Control Components, Inc. , 572 U.S. 118, 134 S.Ct. 1377, 188 L.Ed.2d 392 (2014). However, such "stigmatic injury" can "accord[ ] a basis for standing [ ] to 'those persons who are personally denied equal treatment' by the challenged discriminatory conduct." 468 U.S. at 755, 104 S.Ct. 3315 (quoting Heckler , 465 U.S. at 739-40, 104 S.Ct. 1387 ). In Allen , an equal protection case, the plaintiffs filed suit against the IRS for its failure to deny tax exempt status to private schools that discriminated on the basis of race. The plaintiffs were parents of African American children who attended public school who claimed that they were "harmed directly by the mere fact of Government financial aid to discriminatory private schools." Id. at 752, 104 S.Ct. 1387.

The Supreme Court found that the parents lacked standing because they had never claimed the exemption and thus had not "personally been denied equal treatment." Id. at 755, 104 S.Ct. 3315. The Prospective Parent Plaintiffs, by contrast, allege stigmatic injury because they were personally turned away by certain faith-based child placing agencies. The Prospective Parent Plaintiffs suggest that they are not just part of a larger group that claims unequal treatment - they personally encountered the unequal treatment about which they complain through that act of being turned away as prospective adoptive parents. They have alleged injury-in-fact with respect to their Equal Protection claim.

The Prospective Parent Plaintiffs also argue that courts have found standing based on stigmatic harm in Establishment Clause cases. Moss v. Spartanburg Cnty. Sch. Dist. Seven , 683 F.3d 599 (4th Cir. 2012), was a suit under section 1983 filed against a school district that, acting pursuant to statutory authority, "adopted a policy allowing public school students to receive academic credits for off-campus religious instruction offered by private educators." 683 F.3d at 601. The court reasoned that plaintiffs, none of whom were directly injured by the policy in terms of grades or credits, could not merely claim that they were "spiritually affronted" as a result of "unwelcome" interaction with religion. The court held that "spiritual stake" alone is insufficient to confer standing. Id. at 605-06. A plaintiff's simple "abstract knowledge" of the policy and "feel[ing] like an outsider" (although sharing the Christian faith) upon learning of the policy were insufficient where there was no evidence that the plaintiff had received or encountered promotional materials. Id. at 606. On the other hand, a different plaintiff in Moss , who was not Christian and who did receive promotional materials and discussed the materials with family, viewed the policy as favoritism in the school district for Christianity that made their family feel like outsiders, and did thereby allege sufficient injury in fact: "Feelings of marginalization and exclusion are cognizable forms of injury, particularly in the Establishment Clause context, because one of the core objectives of modern Establishment Clause jurisprudence has been to prevent the State from sending a message to non-adherents of a particular religion "that they are outsiders, not full members of the political community." Id. at 607.

Again, the Prospective Parent Plaintiffs allege stigmatic injury because they were personally turned away by certain faith-based child placing agencies - they allege that they personally encountered the stigmatic harm about which they complain through that act of being turned away as prospective adoptive parents. They have alleged injury-in-fact with respect to their Establishment Clause claim.

The Prospective Parent Plaintiffs also allege that they encountered "practical injuries" in addition to "stigmatic injuries" because the refusal by certain child placing agencies to accept them for screening " 'makes it more difficult for [them] to obtain a benefit than it is for' " opposite-sex couples. (Pls.' Resp. to State Defs.' Mot. 10, PgID 642) (quoting Northeastern Fla. Chapter of Assoc. Gen'l Contractors of America v. City of Jacksonville , 508 U.S. 656, 666, 113 S.Ct. 2297, 124 L.Ed.2d 586 (1993) ). Indeed, City of Jacksonville does instruct that "[w]hen the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing." 508 U.S. at 666, 113 S.Ct. 2297. "The 'injury in fact' in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." Id.

Plaintiffs allege in their Complaint that faith-based agencies handle "20% of the active foster care and adoption cases in Michigan." (Compl. ¶ 26.) Thus it is reasonable to infer that the ability of faith-based agencies to employ religious criteria as a basis to turn away same-sex couples erects at least a 20% barrier to the Prospective Parent Plaintiffs' ability to adopt or foster a child in the State of Michigan. The Prospective Parent Plaintiffs have sufficiently alleged an injury separate from the stigmatic harm they claim to have suffered - the unequal treatment they received as a result of being turned away based upon their status as a same-sex couple, a barrier that makes "it more difficult for [same-sex couples to adopt] than it is for [heterosexual couples]." City of Jacksonville , 508 U.S. at 666, 113 S.Ct. 2297. Defendants continue to assert that the Prospective Parent Plaintiffs had options at many other agencies but (1) this factual assertion is not alleged in Plaintiffs' Complaint and indeed the opposite is alleged; and (2) Plaintiffs' need not demonstrate that they would have been completely foreclosed - only that they could not compete for the right to adopt on the same footing as everyone else. Their Complaint sufficiently alleges such an injury.

Finally, Defendants assert, relying on Smith v. Organization of Foster Families for Equality and Reform , 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) and Renfro v. Cuyahoga County Dep't of Human Services , 884 F.2d 943 (6th Cir. 1989), that Plaintiffs have no fundamental right to be foster or adoptive parents and therefore fail to allege a cognizable injury. (State Defs.' Mot. 12, PgID 75; State Defs.' Reply 1, PgID 667). Plaintiffs do not contest this fact and respond that they are not claiming "a liberty interest protected by substantive due process," as was at issue in Smith and Renfro . They argue instead that their Equal Protection and Establishment Claims are premised on injuries they suffered as a result of the State Defendants' practice of entering into contracts for the provision of state child welfare services with child placing agencies that use religious criteria to turn away prospective parents, causing Plaintiffs stigmatic harm and denying Plaintiffs the same opportunities to work with a child placing agency that is available to every other family in Michigan seeking to adopt. Their Complaint does not challenge any particular agency's decision not to work with them. (Pls.' Resp. to State Defs.' Mot. 9 n. 9, PgID 641.)

The Plaintiffs have adequately alleged injury in fact for both their Establishment Clause and Equal Protection claims.

2. The Prospective Parent Plaintiffs have adequately alleged that their injury is fairly traceable to the Defendants.

The State Defendants next assert that Plaintiffs' claimed injuries are not "fairly traceable" to, or "caused by" these Defendants' conduct because the child placing agencies, and not the State Defendants, are the parties alleged to have turned them away as prospective adoptive parents. For their part, these Defendants argue, the contracts that they maintain with the child placing agencies prohibit those agencies from discriminating against potential applicants. (State Defs. Mot. 13.) Plaintiffs respond that because the State contracts with child placement agencies and accepts that certain agencies may permissibly employ religious criteria to turn away prospective families headed by same-sex couples, the injury is fairly traceable to them as enablers of this conduct.

In Parsons , supra , the Sixth Circuit disagreed with the district court's conclusion that this traceability element was lacking "because the third-party law enforcement officials exercise independent judgment in committing the alleged injuries" by stopping/detaining/searching the Juggalos based upon their alleged gang affiliations:

While the Court [in Lujan ] did enumerate a heightened standard for demonstrating causation in the case of indirect injury caused by a third party, it makes clear that such a standard is satisfied where the plaintiff was able to "adduce facts showing that [the third-party's] choices have been or will be made in such manner as to produce causation and permit redressability of injury."

Parsons , 801 F.3d at 713 (quoting Lujan , 504 U.S. at 562, 112 S.Ct. 2130 ). "The causation need not be proximate ... [and] the fact that an injury is indirect does not destroy standing as a matter of course." Id. at 713. See Warth , 422 U.S. at 504, 95 S.Ct. 2197 ("The fact that the harm to petitioners may have resulted indirectly does not in itself preclude standing.").

In Parsons the Sixth Circuit concluded that plaintiffs, members of a musical group (the Insane Clown Posse) who called themselves "Juggalos," were designated by the National Gang Intelligence Center ("the NGIC") - "an informational center operating under the Federal Bureau of Investigation" - as a "hybrid gang." 801 F.3d at 705. Plaintiffs alleged that this designation caused them to be stopped/searched/detained, in violation of their First and Fifth Amendment rights, by state and local law enforcement officers who were motivated by the NGIC's designation of the Juggalos as a criminal gang. Id. at 706. The Sixth Circuit found that their claims of injury to their reputations and stigmatization allegedly caused by the conduct of the law enforcement officers satisfied the "injury" prong and that allegations that their injuries were caused "at least in part" by the agency's designation of the Juggalos as a "gang" satisfied the traceability/causation prong. Id. at 713.

In this case, according to the allegations of the Complaint, DHHS permits certain child placing agencies to use religious eligibility criteria when screening prospective foster and adoptive families. The contracts with these agencies acknowledge an agency's rights that are protected by the religious belief exemption provided in PA 53, which the faith-based agencies rely on to turn away prospective families headed by same-sex couples because of the agency's religious beliefs. (Compl. ¶ 78.) Defendants admit that, "as Michigan law requires," their contracts with the child placing agencies "expressly incorporate and protect a CPA's rights under P.A. 53." (State Defs.' Mot. Ex. 1, 2016 Adoption Services Agreement Between DHHS and St. Vincent, § 2.9(e).) Here, the Plaintiffs have alleged that their injuries were caused by the State Defendants' contractual and actual practice of permitting a child placing agency to refuse to work with a same-sex couple. Thus, Plaintiffs have alleged facts that "link" the State Defendants to their injuries by alleging that the State Defendants' conduct enabled the child placing agencies to take the actions that they did with regard to same sex couples. As the Sixth Circuit observed in Parsons : "The Juggalos' allegations link the 2011 NGTA Report to their injuries by stating that the law enforcement officials themselves acknowledged that the DOJ gang designation had caused them to take the actions in question. At this initial stage of the case, the Juggalos' allegations must suffice." 801 F.3d at 714. Even if the State Defendants did not direct the child placing agencies to exclude same-sex couples, "it is still possible to motivate harmful conduct without giving a direct order to engage in said conduct." Id. "In the nebulous land of 'fairly traceable,' where causation means more than speculative but less than but-for, the allegation that a defendant's conduct was a motivating factor in the third party's injurious actions satisfies the requisite standard." Id. at 714.

Here, Plaintiffs allege that because of the State Defendants' practice of continuing to enter into contracts that allow the child placing agencies to use religious criteria in excluding same-sex couples, they have suffered both stigmatic and practical harm. This injury is at least "fairly traceable" to the State Defendants based on the allegations before the Court.

3. The Prospective Parent Plaintiffs have adequately alleged that their injuries are redressable by a favorable decision.

With regard to the final element, redressability, Defendants argue that an order enjoining the Defendants from contracting with faith-based agencies that only work with married, opposite-sex couples will not redress the Plaintiffs' claimed injuries because it will leave the Plaintiffs right where they are - without the ability to seek the services of the child placement agencies that refused to work with them because those agencies will be forced to close and will be unable to offer any services at all. (State Defs.' Mot. 13.) Plaintiffs respond that Defendants cannot rely on the factual assertion that these faith-based agencies will no longer be able to provide services because those allegations are not contained in Plaintiffs' Complaint. In any event, the Plaintiffs argue, the relief they seek is not to work with a particular child placing agency but to be able to work with any child placing agency on equal footing with all other prospective adoptive couples, regardless of their sexual orientation. Specifically, Plaintiffs ask the Court to:

A. Declare ... that the State's practice of allowing state-contracted, taxpayer-funded child placing agencies to disqualify prospective families headed by same-sex couples based on agencies' religious beliefs violates the First and Fourteenth Amendments to the United States Constitution;

B. Enter an order enjoining Defendants, in their official capacities, from contracting with or providing taxpayer funding to private child placing agencies that exclude same-sex couples from consideration as foster or adoptive parents or otherwise employ religious criteria in decisions regarding the screening of prospective foster and adoptive parents...

C. Enter an order directing Defendants, in their official capacities, to ensure that lesbian and gay individuals and couples are treated the same as heterosexual individuals and couples by state-contracted child placing agencies.

(Compl. Relief Requested, PgID 21-22.)

"[I]t need not be likely that the harm will be entirely redressed, as partial redress can also satisfy the standing requirement." Parsons , 801 F.3d at 716 (citing Meese v. Keene , 481 U.S. 465, 476, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) ) (alteration in original). Here, according to the allegations of Plaintiffs' Complaint, the relief requested would be likely to redress Plaintiffs' injuries stemming from alleged stigmatism and barriers to adoption because they plausibly allege in their Complaint that there will in fact be more options available to the Plaintiffs and they will no longer suffer the humiliation they allege they suffer now, if they are awarded the relief they seek. "It can scarcely be doubted that, for a plaintiff who is injured or faces the threat of future injury due to illegal conduct ongoing at the time of a suit, a sanction that effectively abates that conduct and prevents its recurrence provides a form of redress." Parsons , 801 F.3d at 716. "While we cannot be certain whether and how the declaration sought by the [Plaintiffs] will affect third-party [child placement agencies], it is reasonable to assume a likelihood that the injury would be partially redressed where, as here, the [Plaintiffs] have alleged that the [child placement agencies] violated their rights because of [the State Defendants' conduct]." Id. at 717.

For similar reasons, Intervenor Defendants' reliance on Simon v. Eastern Kentucky Welfare Rights Organization , 426 U.S. 26, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) is inapt. In Simon , a group of indigent patients and several welfare organizations brought suit against the Secretary of the Treasury and the Commissioner of Insurance asserting that the issuance of a certain Revenue Ruling, that afforded favorable tax treatment to nonprofit hospitals that offered only emergency room treatment to indigents, caused the hospitals to deny the indigent patients certain services. Id. at 28, 96 S.Ct. 1917. The organizations were properly dismissed based on a lack of organizational standing and the Supreme Court limited its analysis to the claims of the individual indigent patients, at least some of whom allegedly were denied services by a hospital because of their inability to pay. No hospitals were named as defendants.

The Supreme Court concluded that the individual indigent patients lacked standing to sue. The Court reasoned that because the complaint alleged only that the Revenue Ruling "encouraged" hospitals to deny services to indigents, and because it was equally plausible that the hospitals would elect to forego favorable tax treatment rather than face "the undetermined financial drain of an increase in the level of uncompensated care," id. at 43, 96 S.Ct. 1917, the patients failed to carry their burden "[t]o establish that, in fact, the asserted injury was the consequence of the defendants' actions, or that prospective relief will remove the harm." Id. at 44-45, 96 S.Ct. 1917. Because "[s]peculative inferences" were necessary to connect the patients' injuries to the effect of the Revenue Ruling, and because the complaint suggested "no substantial likelihood that victory in [the] suit would result in respondents receiving the hospital treatment they desire[d]," there was insufficient directness of injury and therefore no basis for standing. Id. 45-46, 96 S.Ct. 1917.

As an initial observation, and as Plaintiffs point out, Simon did not involve religious-based discrimination and it did not involve a State partnering with a private entity to provide government services in the State's stead. In any event, in this case Plaintiffs have alleged that they suffered stigmatic and practical harm as a result of the State's practice of permitting faith-based agencies to turn them away due to their sexual orientation. And the faith-based agencies concede that their ability to turn away same sex couples and continue to partner with the State is dependent upon the religious belief protection they have been granted by the State. But Plaintiffs are not seeking the services of any particular child placing agency - they are asking that the barriers that they now face to adopting a child based on their sexual orientation be removed and they seek the opportunity to adopt a child based on the same criteria applied to every other family seeking to adopt in Michigan. If they are granted the relief they seek, those barriers will be eliminated and they will be able to pursue adoption on equal footing with other Michigan families. No speculative inferences are necessary here to conclude that the relief requested will result in the Plaintiffs receiving the dignity and equal treatment they seek.

Finally, relying on Fieger v. Michigan Supreme Court , 553 F.3d 955 (6th Cir. 2009), the Intervenor Defendants argue that a higher pleading standard governs the inquiry when, as here, a plaintiff seeks injunctive relief. Plaintiffs have met that burden here. Plaintiffs allege that they continue to suffer from their inability to work with any child placing agency of their choosing and that if the Court grants the relief they seek, breaking down the barriers to adoption that they now face, there will be greater opportunity for them to adopt, plausibly suggesting that they will personally benefit in a tangible way from the requested relief. Defendants urge that the facts are otherwise and that Plaintiffs' options will be the same or fewer if the Court grants the requested relief. The Court cannot accept the Defendants' controverting factual assertions at this stage of proceedings. However, as the Court previously remarked, since the elements necessary to establishing standing "are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Lujan , 504 U.S. at 561, 112 S.Ct. 2130. Thus, while the Court may accept as true the general allegations of the Plaintiffs' Complaint regarding these elements at the pleading stage, Plaintiffs must, at later stages of the litigation, support these allegations with the "manner and type" of evidence demanded at those later stages. Id.

The Prospective Parent Plaintiffs have adequately alleged general Article III standing to proceed further with both their Establishment Clause and Equal Protection Claims.

B. Plaintiffs Have Failed to Establish Taxpayer Standing to Assert Their Establishment Clause Claims.

Defendants argue that because Plaintiffs challenge discretionary executive activity, i.e. the "Defendants' practice of contracting with faith-based [child placing agencies]," (State Defs.' Mot. 11, PgID 74) rather than challenging legislatively mandated spending, Plaintiffs cannot establish taxpayer standing to assert their Establishment Clause claim. The analysis necessarily starts with the long-established premise that taxpayers as taxpayers do not have standing to challenge the constitutionality of a statute or government practice:

In Frothingham v. Mellon , 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), this Court ruled that a federal taxpayer is without standing to challenge the constitutionality of a federal statute. That ruling has stood for 45 years as an impenetrable barrier to suits against Acts of Congress brought by individuals who can assert only the interest of federal taxpayers.

Flast v. Cohen , 392 U.S. 83, 85, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). In Flast , the Court announced a two-part "nexus" test to determine "the standing of individuals who assert only the status of federal taxpayers and who challenge the constitutionality of a federal spending program:"

The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, s 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education , 342 U.S. 429, 72 S.Ct. 394, 96 L.Ed. 475 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, s 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.

392 U.S. at 102-03, 88 S.Ct. 1942.

In Hein v. Freedom From Religion Foundation, Inc. , 551 U.S. 587, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007), the Supreme Court acknowledged the narrow exception to the general rule against taxpayer standing announced in Flast : "In Flast , the Court carved out a narrow exception to the general constitutional prohibition against taxpayer standing." 551 U.S. at 602, 127 S.Ct. 2553. The Court in Hein noted that "[t]he expenditures challenged in Flast [ ] were funded by a specific congressional appropriation and were disbursed to private schools (including religiously affiliated schools) pursuant to a direct and unambiguous congressional mandate." 551 U.S. at 604, 127 S.Ct. 2553. In Hein , plaintiffs challenged the use of federal funds to pay for conferences held or speeches given as part of President George W. Bush's "Faith-Based and Community Initiatives" program that "used 'religious imagery' and 'praised the efficacy of faith-based programs in delivering social services.' " 551 U.S. at 592, 127 S.Ct. 2553. The Supreme Court held that because the conferences and speeches were paid for out of general Executive branch appropriations, and not specific congressional enactments, the case fell outside the narrow exception created in Flast :

The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents do not challenge any specific congressional action or appropriation; nor do they ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue here were not made pursuant to any Act of Congress. Rather, Congress provided general appropriations to the Executive Branch to fund its day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures of which respondents complain. Those expenditures resulted from executive discretion, not congressional action.

551 U.S. at 605, 127 S.Ct. 2553 (footnote omitted). In Hein , the Supreme Court distinguished its earlier decision in Bowen v. Kendrick , 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) :

Bowen v. Kendrick , 487 U.S. 589, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988), on which respondents rely heavily, is not to the contrary. In that case, we held that the taxpayer-plaintiffs had standing to mount an as-applied challenge to the Adolescent Family Life Act (AFLA), which authorized federal grants to private community service groups including religious organizations. The Court found "a sufficient nexus between the taxpayer's standing as a taxpayer and the congressional exercise of taxing and spending power," notwithstanding the fact that "the funding authorized by Congress ha[d] flowed through and been administered" by an Executive Branch official. Id. , at 620, 619, 108 S.Ct. 2562.

But the key to that conclusion was the Court's recognition that AFLA was "at heart a program of disbursement of funds pursuant to Congress' taxing and spending powers," and that the plaintiffs' claims "call[ed] into question how the funds authorized by Congress [were] being disbursed pursuant to the AFLA's statutory mandate." Id. , at 619-620, 108 S.Ct. 2562 (emphasis added). AFLA not only expressly authorized and appropriated specific funds for grantmaking, it also expressly contemplated that some of those moneys might go to projects involving religious groups. See id. , at 595-596, 108 S.Ct. 2562 ; see also id. , at 623, 108 S.Ct. 2562 (O'Connor, J., concurring) (noting the "partnership between governmental and religious institutions contemplated by the AFLA"). Unlike this case, Kendrick involved a "program of disbursement of funds pursuant to Congress' taxing and spending powers" that "Congress had created," "authorized," and "mandate[d]." Id. , at 619-620, 108 S.Ct. 2562.

551 U.S. at 606-07, 127 S.Ct. 2553 (footnote omitted).

Intervenor Defendants direct the Court's attention to Ariz. Christian Sch. Tuition Org. v. Winn , 563 U.S. 125, 131 S.Ct. 1436, 179 L.Ed.2d 523 (2011), where the Supreme Court reiterated the narrowness of the Flast holding and again focused the analysis on whether plaintiff could point to a specific legislative apportionment for religious purposes. Winn involved the issue of whether certain Arizona tuition tax credits, which allowed Arizona taxpayers to make contributions to school tuition organizations ("STOs") and to receive up to a $500 tax credit for the contribution, violated the Establishment Clause. 563 U.S. at 129, 131 S.Ct. 1436. A group of Arizona taxpayers challenged the tax credit based upon the allegation that "STOs use these contributions to provide scholarships to students attending private schools, many of which are religious." Id. The Court noted "at the outset that ... Flast's holding provides a narrow exception to the general rule against taxpayer standing." 563 U.S. at 138, 131 S.Ct. 1436. The Court then reiterated Flast's "two conditions" for taxpayer standing: "The first condition is that there must be a 'logical link' between the plaintiff's taxpayer status 'and the type of legislative enactment attacked.' " 563 U.S. at 138, 131 S.Ct. 1436 (quoting Flast , 392 U.S. at 102, 88 S.Ct. 1942 ). The Court noted that "[i]n the decades since Flast , the Court has been careful to enforce this requirement," citing Hein, supra , as an example where the Court found "no standing under Flast to challenge federal executive actions funded by general appropriations." Winn , 563 U.S. at 139, 131 S.Ct. 1436. The second Flast condition as explained in Winn "is that there must be 'a nexus' between the plaintiff's taxpayer status and 'the precise nature of the constitutional infringement alleged.' " 563 U.S. at 139, 131 S.Ct. 1436 (quoting Flast , 392 U.S. at 102, 88 S.Ct. 1942 ). "This condition was deemed satisfied in Flast based on the allegation that Government funds had been spent on an outlay for religion in contravention of the Establishment Clause." Winn , 563 U.S. at 139, 131 S.Ct. 1436. The Court in Winn explained Flast's ultimate rationale as follows:

After stating the two conditions for taxpayer standing, Flast considered them together, explaining that individuals suffer a particular injury for standing purposes when, in violation of the Establishment Clause and by means of "the taxing and spending power," their property is transferred through the Government's Treasury to a sectarian entity. 392 U.S. at 105-106, 88 S.Ct. 1942. As Flast put it: "The taxpayer's allegation in such cases would be that his tax money is being extracted and spent in violation of specific constitutional protections against such abuses of legislative power." Id. , at 106, 88 S.Ct. 1942. Flast thus "understood the 'injury' alleged in Establishment Clause challenges to federal spending to be the very 'extract[ion] and spen[ding]' of 'tax money' in aid of religion alleged by a plaintiff." DaimlerChrysler , 547 U.S. at 348, 126 S.Ct. 1854 (quoting Flast , 392 U.S. at 106, 88 S.Ct. 1942 ). "Such an injury," Flast continued, is unlike "generalized grievances about the conduct of government" and so is "appropriate for judicial redress." Id. , at 106, 88 S.Ct. 1942.

Winn , 563 U.S. at 139-40, 131 S.Ct. 1436. Ultimately, the Supreme Court found no taxpayer standing in Winn .

In Murray v. United States Dept of Treasury , 681 F.3d 744 (6th Cir. 2012), the Sixth Circuit summarized Supreme Court precedent on the issue of taxpayer standing, discussing Flast , Hein , Bowen , among others as well as the Sixth Circuit's decisions in Pedreira v. Kentucky Baptist Homes for Children, Inc. , 579 F.3d 722 (6th Cir. 2009) and American Atheists, Inc. v. City of Detroit Downtown Development Authority , 567 F.3d 278 (6th Cir. 2009), distilling from these cases the proposition that "the Flast exception does not extend to suits challenging executive-branch expenditures of unearmarked funds." Murray , 681 F.3d at 751 (quoting American Atheists , 567 F.3d at 286 ). The Sixth Circuit in Murray , again drawing on this same precedent, stated that "a taxpayer-plaintiff has standing to challenge an executive-branch disbursement of funds only if the appropriating statute expressly contemplates the disbursement of [government] funds to support religious groups or activities." Id. The Sixth Circuit declined the invitation to "adopt the reasonable inference" as suggested by the plaintiffs, that Congress's general awareness of the fact that some of the funds disbursed by the Treasury Secretary following the acquisition by the Treasury Department of a controlling stake in a financially troubled entity that was known to be selling financial instruments specifically targeted toward compliance with Sharia law, was sufficient to find that the challenged legislation contemplated support for religious activities. Id. at 751-52.

Plaintiffs urge the Court to find taxpayer standing relying on Pedreira, supra . In Pedreira , the Kentucky Baptist Homes for Children, Inc. ("KBHC"), a sectarian organization providing placement resources for at-risk and abused and neglected children, received approximately $12.5 million per year from the State of Kentucky. 579 F.3d at 725. In Pedreira , the Sixth Circuit rejected plaintiffs' assertion of federal taxpayer standing based upon "general [federal] funding provisions for childcare:"

These statutes are general funding provisions for childcare; they do not contemplate religious indoctrination. The plaintiffs respond that the statutes do not forbid unconstitutional uses of these funds. A failure to prohibit unconstitutionality, however, does not equate to an unconstitutional congressional funding mandate.

579 F.3d at 731. The Sixth Circuit did find that plaintiffs had state taxpayer standing based upon a finding "that the Kentucky legislature also appropriated sums of money specifically to KBHC." 579 F.3d at 731. The Sixth Circuit found that this "explicit legislative authorization" for "tax-funded aid" to a religious organization evidenced a sufficient nexus between the state legislative actions and the alleged constitutional violations. Id. at 732. Thus, Pedreira is distinguishable and in fact supports a finding of no taxpayer