Federal judge halts Michigan's new gay adoption rules

Beth LeBlanc
The Detroit News

A Grand Rapids federal judge has halted a new state policy that bans state contracts with foster and adoption agencies that refuse to work with gay couples.

The state’s settlement and comments made by Democratic Attorney General Dana Nessel about the policy prior to taking office show “that the state’s new position targets St. Vincent’s religious beliefs,” U.S. District Judge Robert Jonker wrote in his Thursday opinion.

The opinion comes none too soon for St. Vincent, whose contract for adoption services with the state expires on Monday. 

"One of the reasons we needed urgent relief was because the contract was ending on Monday," said Nick Reaves, a lawyer for the adoption agency. "This ruling basically protects St. Vincent’s and stops the state from taking adverse action, such as not renewing the contract.”

Attorney General Dana Nessel.

In his opinion, Jonker said Nessel "is at the very heart of the case" in part because of comments she made on the campaign trail in which she described supporters of the state’s prior policy as “hate mongers” and said she “could not justify using the state’s money” to defend “a law whose only purpose is discriminatory animus.”

Shortly after taking office, Nessel agreed to change state policy so contracts with agencies that refused to work with gay couples would be terminated.

"All of this supports a strong inference that St. Vincent was targeted based on its religious belief, and that it was defendant Nessel who targeted it," wrote Jonker, an appointee of Republican President George W. Bush. 

“Under the attorney general’s current interpretation of Michigan law and the parties’ contracts, St. Vincent must choose between its traditional religious belief, and the privilege of continuing to place children with foster and adoptive parents of all types," Jonker wrote.

Nessel tweeted late Thursday in response to the development: "Now and forever I will fight to support the constitutional precepts of separation of church and state and equal protection under the law for all Michigan residents and all Americans."

The lawsuit filed on behalf of St. Vincent, an adoptive mother and a former foster child revolves around a March settlement between Nessel and the American Civil Liberties Union of Michigan regarding two gay couples who had sued the state when they were rejected by agencies with religious objections to same-sex couples. The agencies were St. Vincent and Bethany Christian Services.

The judge's opinion failed to note that some of those comments were made by Nessel in her capacity as a private citizen and others were taken out of context, said Jay Kaplan, a staff attorney for the ACLU of Michigan. 

Jonker's decision to issue a preliminary injunction was disappointing and appeared to ignore counter arguments made by the state and the ACLU in amicus briefings, he said.

Adoption agencies essentially become state actors when they contract with the state and allowing them to invoke religious reasons for failing to serve a group of people is akin to a "violation of church and state," he said. The decision essentially "provides a license for discrimination," Kaplan said.  

"The ones who lose as a result of this are the children, the children who need these loving, stable homes," Kaplan said.

A spokeswoman for Nessel's office said the department is reviewing the decision. The Michigan Department of Health and Human Services referred comment to the attorney general's office.

The settlement required the state Department of Health and Human Services to maintain non-discriminatory provisions in foster care and adoption agency contracts by ending state contracts with agencies if they discriminate against same-sex couples.

In its April filing, St. Vincent argued the new policy violated the group’s First Amendment rights to free exercise of religion and free speech, the group's 14th Amendment rights to equal protection and those rights guaranteed under the Religious Freedom Restoration Act.

The agency is represented by a religious liberty group, Becket Law.

The judge's ruling Thursday shows "discriminatory actions taken by the state in this case really have no role in the foster care and adoption context," Reaves said. "And when the state takes these actions, it actually makes it harder to find a home for kids in need.”

The case revolves not around whether same-sex couples can be great parents, Jonker wrote, but around “whether St. Vincent may continue to do this work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman.”

Without state contacts, St. Vincent would be forced to close its doors, the agency argued. Further, other adoption agencies are available to gay couples seeking a child. 

As of mid-February, St. Vincent and Bethany were responsible for nearly 10% of the more than 13,000 children under state supervision.

Agencies already can refer couples to different adoption agencies for various reasons, including geography, waitlists or a family's search for a specific type of child. But under the new policy, "the only justification for a referral that is now impermissible is a religious objection to same-sex marriage," the lawsuit said.

In the past, St. Vincent had referred gay couples to other adoption agencies because it believes an evaluation recommending the couples for state licensure “would conflict with (its) religious beliefs.”

The state has investigated St. Vincent for compliance with the new policy but "were waiting for the lawsuit to play out before they take the next step," Reaves said. The ruling further prevents the state from acting on the new policy during the duration of the case, he said. 

The Legislature in 2015 passed a law that protected faith-based agencies that declined to provide services based on religion. Nessel’s office argued the law applied only to “private action” and not to “state-contracted services.”

Republican former Attorney General Bill Schuette had defended the state against the ACLU lawsuit when it was filed in 2017, but Nessel’s office sought a settlement instead.

The Michigan Catholic Conference, a lead advocate for the 2015 law, praised the judge's Thursday decision, saying: "it's encouraging to see that Dana Nessel's animosity toward Catholics has now been recognized in federal court."