Nessel asks for stay in same-sex adoption case, rebuts anti-Catholic argument

Beth LeBlanc
The Detroit News

Lansing — Attorney General Dana Nessel is making an emergency appeal to a federal judge, asking him to pause his decision allowing faith-based adoption agencies to continue contracting with the state despite their refusal to work with gay couples.

Nessel’s office said U.S. District Judge Robert Jonker’s comments — in which he alleged Nessel “targeted” St. Vincent Catholic Charities and Bethany Christian Services based on their religious beliefs — were “highly unusual” and his animosity toward the attorney general’s viewpoint “only thinly veiled.”

In his opinion last month, 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.

Michigan Attorney General Dana Nessel.

In a statement announcing the motion, Nessel denied being “anti-Catholic.” She said her 2015 comments, in which she called legislation that sought to protect state contracts with faith-based adoption agencies that declined to work with gay couples “a victory for the hate mongerers,” did not express religious hostility.

“Children who are wards of this state deserve families who love and respect them; they need and deserve forever families — not hostile court battles and rhetoric that overshadows the very purpose of this case,” Nessel said Friday. 

“Judge Jonker’s comments unnecessarily inflamed an issue that at its core is about adhering to contractual obligations with the state; nothing more and nothing less.”

Jonker, an appointee of former President George W. Bush, said Nessel's original statements supported a "strong inference" that she targeted St. Vincent because of its religious beliefs.

The lawsuit filed on behalf of St. Vincent and two individual plaintiffs revolves around a March settlement between Nessel and the American Civil Liberties Union of Michigan regarding two gay couples who sued the state when they were referred elsewhere by St. Vicent and Bethany, agencies with religious objections to same-sex couples. 

Melissa Buck, an adoptive mother and initial plaintiff in the case, said she was encouraged by Jonker's opinion and confident the U.S. Sixth Circuit Court of Appeals would "reach a similar conclusion." Buck and St. Vincent's are represented by Becket, a law firm specializing in religious liberty cases. 

"It’s time for Michigan to stop playing politics with our children and give up this needless fight once and for all," said Buck, who was dismissed from the case last month, but remains supportive of St. Vincent's work.

Nessel asked in her motion Friday for Jonker to stay his preliminary injunction during her appeal to a higher court, arguing that Jonker’s decision “turns the status quo on its head rather than maintaining it.”

For several years, the department’s policy has included a non-discrimination clause in its contracts, allowing a contracting agency to reject a referral with no explanation but prohibiting an agency from doing so on the basis of sexual orientation after accepting the referral, Friday's motion said.

Nessel’s office has maintained a 2015 law meant to protect state contracts with faith-based agencies with religious objections to assessing gay couples applying for adoption applies only to private adoption services and does not encompass contracts with the state.

The 2019 settlement with the ACLU only ensured that the state would be required to follow that existing non-discrimination policy, Nessel’s office argued.

“The record shows that (St. Vincent's) refusal to assess same-sex and unmarried couples as part of the mandatory foster care case management and adoption services provided to each child in care, is, indeed, a contract violation,” the motion said.

The policy is “neutral and generally applicable” regardless of past statements Nessel may have made as a private citizen, which Jonker “misconstrued and took out of context,” the lawsuit argued.  

“Even if Attorney General Nessel’s statements could be construed as negative to a particular religion or belief, they do not transform the department’s longstanding, religiously neutral and generally applicable policy into pretext for religious targeting—as the Court erroneously concluded,” the motion said.

Jonker’s injunction, the motion said, “presents significant, potential injury” for children seeking to be fostered or adopted. The exclusion of same-sex couples by some agencies potentially limits “the number of applicable families for children in a foster care system who desperately need families.”