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Judge Blocks Michigan's Pro-LGBTQ Adoption Nondiscrimination Policy

Dana Nessel and the Bucks

A federal judge has dealt a blow, at least temporarily, to Michigan’s policy of not contracting with adoption and foster care agencies that discriminate against LGBTQ people.

U.S. District Judge Robert J. Jonker granted a preliminary injunction in the case of Buck v. Gordon, brought by St. Vincent Catholic Charities and a Michigan couple, Chad and Melissa Buck. The injunction means that while the case proceeds through the courts, the state cannot terminate St. Vincent’s contract to provide adoption and foster care services to the state. It also means the federal government cannot penalize the agency either, under nondiscrimination regulations adopted when Barack Obama was president.

Attorney General Dana Nessel, who took office in January as Michigan’s first out gay statewide elected official, announced in March that the state’s Department of Health and Human Services would enforce nondiscrimination policies in contracting with agencies that provide those services, up to and including termination of the contract if the agency discriminates against same-sex couples or LGBTQ individuals who meet the qualifications to become adoptive or foster parents.

That policy came out of a settlement in suits brought by a same-sex couple who said St. Vincent and another agency, Bethany Christian Services, had turned them away when they sought to adopt children the agencies had accepted through referrals from the state HHS. Bethany agreed to change its policy regarding LGBTQ people, but St. Vincent sued, with the Bucks, who have adopted five special-needs children through the agency, joining as plaintiffs, as well as Shamber Flore, a woman who was placed by St. Vincent with another adoptive family when she was a child.

St. Vincent, the Bucks, and Flore contend that Michigan’s revised policy violates their constitutional rights to freedom of religion, expression, speech, and equal protection of the laws, and also violates the federal Religious Freedom Restoration Act. They are represented by Becket (formerly Becket Fund for Religious Liberty). Nessel is a defendant in the case, along with Robert Gordon, director of the Michigan DHHS, and Alex Azar, secretary of the U.S. Department of Health and Human Services. Jonker found that the Bucks and Flore do not have standing to continue as plaintiffs, as any harm caused to them is tangential, but he contended that St. Vincent is indeed harmed.

“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,” Jonker wrote in granting the injunction. The case is subject to a high level of legal scrutiny, he said, because the state “targets St. Vincent’s religious beliefs.”

Because of those beliefs, St. Vincent officials have said they cannot certify same-sex or unmarried couples as suitable adoptive parents, but they have no desire to classify all as unsuitable. Instead, they simply refer these couples to other agencies, Jonker wrote. And parents certified by other agencies have been able to adopt children in St. Vincent’s care, he said. “St. Vincent has never prevented a same-sex couple from fostering or adopting a child,” he wrote. Because of this, he contended, the target of Nessel’s policy is not actual discrimination but instead the agency’s religious beliefs.

“Leading up to and during the 2018 general election campaign, [Nessel] made it clear that she considered beliefs like St. Vincent’s to be the product of hate. … That kind of targeted attack on a sincerely held religious belief is what calls for strict scrutiny in this case and supports entry of a preliminary injunction preserving the status quo while the case is fully litigated,” Jonker concluded.

The Advocate has asked for comment from Nessel's office but has yet to receive a response. However, the American Civil Liberties Union's Michigan affiliate, which has sought to intervene in the case, did issue a statement. “Today’s decision requires the state to put the individual religious beliefs of foster care agencies ahead of the welfare of children,” said Jay Kaplan, LGBT Project staff attorney at the ACLU of Michigan. “This will not facilitate foster and adoptive placements for children in need. Instead, it will allow agencies to turn away same-sex foster parents who are able to provide supportive and loving homes for these children.”

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