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Judge denies Michigan attorney general's motion in same-sex adoption case

Mark Hicks
The Detroit News

A federal judge has denied Attorney General Dana Nessel’s request to pause his decision allowing faith-based adoption agencies to continue contracting with the state despite their refusal to accommodate gay couples.

Nessel had asked in her Oct. 11 motion for U.S. District Judge Robert Jonker to stay his September preliminary injunction during her appeal to a higher court. In it, she argued that the judge's decision to halt a new state policy that bans state contracts with foster and adoption agencies that won't work with LGBT adopters “turns the status quo on its head rather than maintaining it.”

Michigan Attorney General Dana Nessel had asked U.S. District Judge Robert Jonker to stay his September preliminary injunction during her appeal to a higher court. He denied her request Tuesday.

In his order Tuesday denying the request, Jonker said “the state has offered nothing new and has failed to come to grips with the factual basis on the preliminary injunction record that supports the inference of religious targeting in this case.”

He added: “The factors the court must consider on a motion for stay are exactly the same factors the court had to consider in deciding whether to grant a preliminary injunction in the first place.”

Reached Tuesday, Dan Olsen, a spokesman for Nessel’s office, said in an email: “We will review the order with our client (the Michigan Department of Health and Human Services), to determine appropriate next steps.”

The judge's order stems from a lawsuit filed on behalf of St. Vincent Catholic Charities and two plaintiffs. The suit 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. Vincent and Bethany Christian Services, agencies with religious objections to same-sex couples.

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

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.

St. Vincent has argued that the new policy violates 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.

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

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

The injunction, her recent 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.”

In his opinion last month, Jonker wrote: “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."