Nessel plans settlement talks in lawsuit targeting same-sex adoption refusals

Michigan Attorney General Dana Nessel will enter settlement discussions in a case challenging state taxpayer funding for faith-based adoption agencies that refuse to place foster children with same-sex couples.

The Democrat indicated her intentions in a Wednesday court filing that resulted in a federal judge granting her a 30-day stay in the case. Nessel is the state's first openly gay attorney general who ran on a platform saying she probably wouldn’t defend the law that allows faith-based groups to reject same-sex couples seeking to adopt children because it is discriminatory.

“Our client agency and the plaintiffs have expressed an interest in resolving this matter and, as such, we intend to engage in a concerted effort to settle the matter," Nessel spokeswoman Kelly Rossman-McKinney said in a statement Thursday.

Michigan permits state-contracted, taxpayer-funded child placing agencies to reject same-sex couples as foster or adoptive parents based on the agencies' religious objections to such families, American Civil Liberties Union of Michigan attorneys allege.

State lawyers had argued that a 2015 state law says child placement agencies shall not be required to provide services that conflict with their beliefs. 

ACLU attorneys argue the law does no such thing and contend state government is ignoring provisions in contracts with the agencies that prohibit discrimination based on sexual orientation. It's the state's refusal to take action on the contract violations that the ACLU is challenging, said Jay Kaplan, a staff attorney for the ACLU of Michigan LGBT Project.

The ACLU joined Nessel in the motion for a stay on the case and is "hoping we can make some resolution between us and the state," Kaplan said. 

The ACLU filed the lawsuit on behalf of Kristy and Dana Dumont of Dimondale and Erin and Rebecca Busk Sutton of Detroit after they sought to adopt a child out of Michigan’s foster care system, but were rejected by agencies with religious objections to same-sex couples.

The couples' lawsuit was filed against the Michigan Department of Health and Human Services and the Michigan Children's Services Agency. St. Vincent Catholic Charities was named as an intervenor-defendant. 

Settlement discussions will take place between the ACLU and the state, not St. Vincent's, Kaplan said. 

Lori Windham, senior counsel for Becket Law, the religious liberty group representing St. Vincent's, said the group looks forward "to a resolution that will hopefully protect the children and families who depend on religious adoption agencies like St. Vincent.”

Nessel, who replaced the state’s attorneys on the case Wednesday, asked to court to grant a 60-day stay on the case so her office could discuss a settlement. Discovery in the case was scheduled to be completed by March 18.

Federal District Judge Paul Borman on Thursday instead granted her a 30-day stay. 

“The parties have a good faith belief that there is a reasonable likelihood that they may be able to settle the case if given sufficient time to engage in focused discussions over the coming weeks,” Nessel’s motion said.

Nessel's motion came the same day she withdrew from the case the state's retained counsel, former Michigan solicitor general John Bursch, and an in-house attorney leaving the department at the end of the week.

Earlier this month, Democratic Gov. Gretchen Whitmer issued an executive directive protecting employees from discrimination on the basis of their gender or sexual orientation. The directive extends to a ban on the discrimination in the provision of services.

The directive cannot change the 2015 state statute, Whitmer’s spokeswoman Tiffany Brown said in an email, but noted that the ACLU’s case may have some influence on the statute.

“The governor, of course, respects the process and the rule of law, and ultimately the constitutionality of the statute will be decided by the courts,” Brown said.

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