Jacques: Targeting religion still not OK

Ingrid Jacques
The Detroit News

Michigan Attorney General Dana Nessel has made a name for herself as a progressive firebrand, flippantly disregarding laws she doesn’t like.

That’s made her a rock star among her liberal base, but it’s troubling to those who believe her actions are putting their constitutional rights at risk. 

Now, some of Nessel’s words are coming back to bite her.

In an opinion from late September, a federal judge called out Nessel's targeting of a Michigan adoption and foster care agency for its religious beliefs. 

U.S. District Judge Robert Jonker, based in Grand Rapids, granted St. Vincent Catholic Charities a reprieve by halting a new policy preventing the state from contracting with child placement agencies that believe it goes against their faith to conduct extensive home studies (St. Vincent does this on its own dime) for same-sex couples. 

The injunction allows St. Vincent to continue its work with the state while the case is litigated. The opinion came just days before the agency’s contract with the state expired Oct. 1. 

The revamped state guidelines took effect this spring, following Nessel’s settlement of an ACLU lawsuit targeting Michigan’s 2015 law protecting religious agencies that contracted with the state to place some of the 13,000 children under state care in short-term and permanent homes. 

St. Vincent sued the state in April for violating its constitutional religious and free speech rights. It refuses to bow to the new policy, which conflicts with its Catholic views of marriage. 

“Based on the record to date, Defendant Nessel is at the very heart of the case,” Jonker wrote. “She referred to proponents of the 2015 law as ‘hate-mongers’ and said the only purpose of the 2015 law was ‘discriminatory animus.’ She described the 2015 law as ‘indefensible’ during her campaign. These statements raise a strong inference of a hostility toward a religious viewpoint.”

Michigan Attorney General Dana Nessel

Importantly, Jonker also references the 2018 Masterpiece Cakeshop Supreme Court decision that found a Colorado baker who refused to make a wedding cake for a gay couple was unfairly targeted by the state’s Civil Rights Commission, which made “disparaging statements” about the baker’s beliefs. Jonker notes how the High Court found it's the state’s “duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.”  

Nessel has appealed Jonker’s opinion with the 6th U.S. Circuit Court of Appeals, in addition to filing an “emergency motion for stay pending appeal." 

Lori Windham, senior counsel with Becket, which is representing St. Vincent, is confident the attorney general won’t succeed in her appeal, saying the “free exercise violation” is clear. 

“Judge Jonker’s decision was right, and it will be held up on appeal,” Windham says. “The court realized this has important real-world consequences.”

While a boutique agency, compared with larger ones in the state, St. Vincent in 2018 worked with 223 adults and children through its adoption and foster care services.

It has a strong record with the families in its fold. The Bucks, who have adopted five children, and a young woman adopted through the agency, joined as plaintiffs in the case. 

Nessel’s office called Jonker’s opinion “stinging” and his “attacks” directed at her “highly unusual.” 

Or it could just be another instance of constitutional reality clashing with Nessel’s ideals.