(CN) – Religious liberty advocates have praised a Michigan federal judge who blocked the state from enforcing new rules that he says target faith-based foster and adoption agencies. But supporters of the policy voiced concerns that the ruling reopened the door to discrimination against same-sex couples.
Lori Windham, an attorney with the religious liberty law firm Becket who is representing plaintiffs St. Vincent Catholic Charities, an adoptive mother and former foster child, welcomed Chief U.S. District Judge Robert Jonker’s ruling issued Thursday.
She said Michigan had a “common sense” approach that allowed faith-based organizations to refer same-sex couples to another agency, and said that after the paperwork was complete those couples could still adopt a child in St. Vincent’s care.
“The ruling was a strong rebuke of what Michigan has done to try and stop working with faith-based adoption and foster agencies,” Windham said in a phone interview. “The judge also recognized that shutting down these agencies would not help the state find more homes for foster children. They would have the opposite effect.”
The reaction from officials and groups that supported the ban on state contracts was just as swift. Democratic Attorney General Dana Nessel, who agreed to enact the new rule earlier this year, jumped to its defense.
“Now and forever I will fight to support the constitutional precepts of separation of church and state and equal protection under the law for all Michigan residents and all Americans,” Nessel tweeted Thursday.
St. Vincent had challenged a settlement after Kristy and Dana Dumont were turned away by St. Vincent and Bethany Christian Services because of their opposition to same-sex marriage. That led the Michigan Department of Health and Human Services to enact a new rule to terminate contracts with agencies that discriminate against gay couples.
St. Vincent’s current contract with the state was scheduled to end Monday.
Jonker, a George W. Bush appointee, frequently cited Nessel in his 32-page opinion. The Grand Rapids judge granted St. Vincent’s motion for a preliminary injunction. He said comments that Nessel made in the run-up to last year’s election suggested that she was targeting organizations like St. Vincent because of their religious beliefs.
Nessel, who is gay, attacked a 2015 law enacted by the Republican-controlled Legislature which allowed agencies like St. Vincent to refuse to work with gay couples. Nessel said that if she were attorney general, she would refuse to defend the law. She called the supporters “hate-mongers” who discriminated against gay couples.
“I could not justify using the state’s money defending a law whose only purpose is discriminatory animus,” Nessel said in September 2018.
Jonker said that after the Democrat took office, she reinterpreted the 2015 law. In its place, the state created a policy banning state contracts, and “put St. Vincent in the position of either giving up its belief or giving up its contract with the state,” he said.
“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 wrote.
Becket called the rule change an attempt to shutter religious foster and adoption services. St. Vincent said that while it did decline service to gay couples, it always worked with them to find another agency. A bar on state contracts would prevent it from helping thousands of vulnerable children who need to find homes, the group said in a statement.
Jonker said that St. Vincent demonstrated that it would likely prevail under the First Amendment right to free exercise of religion.
He said that Nessel’s statements as a candidate created a “strong inference” that the state was targeting St. Vincent because of its belief that marriage is only a union between a man and woman. The judge added that nothing suggested St. Vincent’s had denied service to gay couples. Instead, it was professing a belief that would prevent it from securing a state contract.
“To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the state,” Jonker wrote.
The judge said the policy suggests that the goal is “not to promote non-discriminatory child placements” but to punish St. Vincent for its religious beliefs.
“It would disrupt a carefully balanced and established practice that ensures nondiscrimination in child placements while still accommodating traditional Catholic religious beliefs on marriage. It would replace this with a state-orthodoxy test that prevents Catholic believers from participating,” Jonker wrote.
Jay Kaplan, a staff attorney with the American Civil Liberties Union of Michigan, said that Jonker’s ruling meant that St. Vincent could turn away same-sex couples, and prioritized religious beliefs over the welfare of children.
He said in a phone interview that contrary to what Jonker had asserted, St. Vincent turned away same sex couples, only referring them to the website of the Michigan Adoption Resource Exchange. He said supporters of the policy did not have a chance to defend it in an evidentiary hearing.
“This isn’t going to facilitate more foster and adoptive placements for children in need,” Kaplan said. “Instead, it gives a license to allow agencies to turn away same-sex foster parents who are able and want to provide supportive and loving homes for children.”
The attorney general’s spokeswoman Kelly Rossman-McKinney said her office is reviewing the opinion “to determine our next steps.”