A federal judge has in ruled in favor of a taxpayer-funded Catholic adoption agency in Michigan refusing to certify LGBTQ couples as qualified to take children into their homes.
U.S. District Judge Robert Jonker, a George W. Bush appointee, issued a preliminary injunction Sept. 26 in favor of St. Vincent, a faith-based non-profit based in Lansing, Mich., concluding the state is targeting the agency for its religious beliefs.
“This case is not about whether same-sex couples can be great parents,” Jonker writes. “They can. No one in the case contests that. To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State. What this case is about is 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.”
The case was filed in April after a settlement was reached in a separate case filed by the American Civil Liberties Union challenging Michigan’s religious freedom adoption law, which allowed faith-based to turn away LGBTQ families seeking to adopt. Under the settlement, Michigan adoption agencies going forward were prohibited from discriminating against LGBTQ couples.
Shortly afterward, the Michigan Department of Health & Human Services opened an investigation into St. Vincent under allegations wasn’t complying with the settlement’s non-discrimination terms. Anticipating it would be found out of compliance, St. Vincent preemptively filed the lawsuit seeking an injunction to continue to certify families for child placement consistent with its religious beliefs.
St. Vincent made the case Michigan is violating freedom of religion and speech under the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by threatening to penalize the agency for refusing to certify LGBTQ families.
Jonker grants his preliminary injunction to St. Vincent on the basis that the agency has demonstrated harm imposed by the settlement and the likelihood of success in court.
“St. Vincent says it cannot in good conscience review and certify an unmarried or same-sex parental application,” Jonker writes. “St. Vincent would either have to recommend denial of all such applications, no matter how much value they could provide to foster and adoptive children; or St. Vincent would have to subordinate its religious beliefs to the state-mandated orthodoxy, even though the state is not compensating them for the review services anyway.”
Making the case St. Vincent isn’t anti-LGBTQ, Jonker writes St. Vincent’s “does not prevent any couples, same-sex or otherwise, from fostering or adopting.” The agency, Jonker writes, refers LGBTQ and unmarried couples seeking certify to adopt to other agencies willing to provide that endorsement.
LGBTQ couples, Jonker writes, can also adopt children at St. Vincent through the Michigan Adoption Resource Exchange (MARE) website, which allows all Michigan families access to all children adoption agencies (so long as they obtained certification at an agency other than St. Vincent).
“St. Vincent has never prevented a same-sex couple from fostering or adopting a child. St. Vincent has actually placed children through the MARE system with same-sex adoptive parents,” Jonker writes. “And St. Vincent provides parenting support groups at which same-sex parents are welcome and, in fact, attend. This is non-discriminatory conduct consistent with everything the State says it is trying to promote.”
Heavily cited by Jonker is the decision of Michigan Attorney General Dana Nessel, a lesbian, to no longer defend in litigation the state’s religious freedom adoption signed ged by former Michigan Gov. Rick Snyder.
As the law was being challenged in court during the 2018 election, Nessel campaigned on refusing to defend the law, asserting she “could not justify using the state’s money” to defend “a law whose only purpose is discriminatory animus.” Upon winning the election, Nessel helped reached the settlement for non-discrimination in Michigan adoption agencies.
Jonker writes the record demonstrates Nessel is targeting St. Vincent’s for its religious beliefs, therefore strict scrutiny applies, to the state’s enforcement of the settlement.
“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 writes.
The Washington Blade has placed a request in with the Michigan attorney general’s office seeking comment on the decision.
Representing St. Vincent’s in the case was the Becket for Religious Liberty, which has defended groups like Hobby Lobby and Little Sisters of the Poor.
Lori Windham, a religious liberty attorney with Becket, hailed the decision on Twitter as a “major victory for faith-based foster care and adoption in Michigan.”
“Thanks to the ruling, St. Vincent will be able to continue serving foster children in Michigan and their selfless foster families,” Windham tweeted. “More than 13,000 foster kids in Michigan need help, and we need all hands on deck.”
Jay Kaplan, LGBTQ Project staff attorney of the American Civil Liberties Union of Michigan, criticized the decision as “the individual religious beliefs of foster care agencies ahead of the welfare of children.”
“This will not facilitate foster and adoptive placements for children in need,” Kaplan said. “Instead, it will allow agencies to turn away same-sex foster parents who are able to provide supportive and loving homes for these children.”
Another defendant in the case is the Department of Health & Human Services, which has under the Obama administration instituted regulations prohibiting federal contractors discriminating on the basis of sexual orientation. (The Trump administration has kept the regulations — for now — but has granted at least one waiver to states seeking exemption for faith-based adoption agencies.)
Jonker’s decision also enjoins the U.S. government from enforcing its regulations to penalize St. Vincent. A Justice Department spokesperson said the administration is “reviewing the decision.”
Also in the decision, Jonker finds other named plaintiffs in the case — Chad and Melissa Buck, who have adopted four siblings through St. Vincent and work at the agency, and Shamber Flore — who was placed in the agency as a child before she was adopted — don’t have standing to continue in the case.
