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Federal Court Enjoins Michigan Policy Requiring Faith-Based Adoption Agencies to Certify Same-Sex Couples as Suitable Adoptive or Foster Parents

Posted on: September 28th, 2019 by Art Leonard No Comments

Chief U.S. District Judge Robert J. Jonker ruled that a faith-based adoption and foster care agency should not be endangered with loss of its license to function as a certified child placement agency under contract with the state of Michigan while a lawsuit proceeds challenging the state’s current interpretation of its non-discrimination law resulting from the settlement agreement between the state and some same-sex couples in a separate case.  Buck v. Gordon, 2019 U.S. Dist. LEXIS 165196, 2019 WL 4686425 (W.D. Mich., Sept. 26, 2019).

The ruling follows a complicated series of events and is based on a detailed review by the court of the systems and procedures in place for adoption and foster care in Michigan.

According to Judge Jonker’s opinion, a Michigan regulation and the federal law under which financial assistance is channeled to Michigan to support the state’s adoptive and foster-care system requires that people seeking to be certified as qualified to be adoptive or foster parents not be subjected to discrimination because of sexual orientation or gender identity, among many prohibited grounds of discrimination.

Because some of the private agencies under contract with the state to provide these services are “faith-based” agencies whose religious views would prevent them from certifying single people or same-sex couples as qualified, and the state legislature did not want to see such agencies abandon the field, the state enacted a statute in 2015 allowing faith-based agencies to refer applicants to other agencies to perform the evaluation process and issue the certifications if the agency’s religious beliefs would prevent them from being able to certify an applicant or couple.

Some same-sex couples challenged this “religious freedom” statute as violating their constitutional rights in Dumont v. Gordon, Case No. 2:17-cv-13080 (E.D. Mich., filed Sept. 20, 2017).  The state defended the statute, and St. Vincent Catholic Charities, a long-time faith-based provider of such services, was drawn into the case, because the same-sex couples had approached St. Vincent and were referred elsewhere for their home study and certification.  After out lesbian Dana Nessel was elected Attorney General, during a campaign in which she criticized the state law which, which she said was authorizing discrimination against LGBT people, she changed the state’s position, and her office negotiated a settlement under which the state undertook to enforce the anti-discrimination rules without any exception for faith-based agencies.

St. Vincent, whose contract with the state covering adoption services expires September 30, 2019, was warned that unless it dropped its policy of referring same-sex couples to other agencies, its contract might not be renewed, which would mean not only the loss of state money but the loss of its status as a contracted services provider, which meant it could no longer function in the adoption placement service.  Its contract for foster care services runs through September 30, 2021, so is not in immediate danger of non-renewal.

In this lawsuit, St. Vincent and some of the foster and adoptive parents who have worked with it in the past brought suit challenging the state’s action, seeking the protection of the statute that was challenged in the earlier case, and a declaration that any requirement for St. Vincent to drop its objection to examining and certifying same-sex prospective adoptive or foster parents would violate the 1st and 14th Amendments.  In addition to naming state officials, the lawsuit names the U.S. Secretary of Health and Human Services, as federal non-discrimination regulations are also implicated.  As a result, the lawsuit also rests on the federal Religious Freedom Restoration Act.

As Judge Jonker describes the system, although St. Vincent routinely refers same-sex couples to other agencies for certification, once an individual or couple are certified to be adoptive or foster parents, they may adopt or foster through St. Vincent.  St. Vincent has placed children with same-sex couples, and opens the various supportive services it provides to adoptive and foster families of such couples.  The only issue as to which there is disagreement between St. Vincent and the state, according to their Complaint, is the issue of evaluating the prospective parents and certifying them.

Judge Jonker concluded that in light of these facts, St. Vincent should be entitled to a preliminary injunction while the case is being litigated, with the pressing deadline of September 30 for renewal of their current contract as an adoption service provider looming just days after the injunction was issued.

The first essential test for injunctive relief is whether St. Vincent is likely to be successful in their claim of a constitutional violation.  Finding that this test was met, the judge said that this case is not covered by Supreme Court precedents holding that no religious exemption is required when a challenged law is neutral with respect to religion and is of general applicability, of which the leading case is Employment Division v. Smith, 494 U.S. 872 (1990).  Taking account of the historical background to the challenged policy here, the judge found that “the historical background, specific series of events, and statements of Defendant Nessel all point toward religious targeting.”

Reviewing the sequence of events described above, he found that “the 2018 campaign for Michigan Attorney General and General Nessel’s statements create a strong inference that the State’s real target is the religious beliefs and confessions of St. Vincent, and not discriminatory conduct.”  He based this conclusion on St. Vincent’s allegation that it “has never prevented a same-sex couple from fostering or adopting a child.”  If St. Vincent was required to accept applications from same-sex couples and carry out its evaluation, it would be put to the task of stating whether the couple should be certified to be adoptive or foster parents, a determination that it would want to make in accord with its religious principles, which would mean denying the certification.  Instead, St. Vincent makes referrals of such couples to other agencies, knowing that those agencies will certify the couples if they meet the objective criteria specified by state regulations.

Furthermore, he appointed out, under the system in Michigan, children who need an adoptive or foster placement are referred to contracted agencies through the Michigan Adoption Resource Exchange (MARE) and, he found, “St. Vincent has actually placed children though the MARE system with same-sex adoptive parents.”  Once a prospective couple has been certified, St. Vincent avows, they are treated the same as any other certified couple with regard to all its adoption and fostering placements and services.

“The State is willing to prevent St. Vincent from doing all this in the future simply because St. Vincent adheres to its sincerely held religious belief that marriage is an institution created by God to join a single man to a single woman,” he wrote.  “Because of that religious belief, St. Vincent says it cannot in good conscience review and certify an unmarried or same-sex parental application.  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.”  St. Vincent makes referrals of single folks and same-sex couples to other agencies to avoid being put into this quandary.

The court notes that until Attorney General Nessel took office, the state had been defending this practice in the prior litigation, and Nessel’s rhetoric during the campaign convinced the judge that the settlement of the Dumont lawsuit and the agreement to enforce the non-discrimination policy against all contracting agencies showed that the new policy is targeting religion even though it appears neutral on its face.

Judge Jonker determined that this is a “strict scrutiny” case because it targets religious belief, and that under this demanding test, the new policy is likely to be held unconstitutional.  He also found that this case was materially distinguishable from the Philadelphia case decided by the 3rd Circuit Court of Appeals earlier this year, Fulton v. City of Philadelphia, 922 F.3d 140 (2019), because of differences in the facts: the Catholic agency in Philadelphia was refusing to deal with same-sex couples at all, while St. Vincent refers them to other agencies for certification, and once they are certified, will place children with them and provide supportive services.

The court also determined that the balance of harms as between issuing or not issuing the injunction weighed in favor of issuing it, against both the state and the federal government, because of the possibility (remote, it would seem) that the Trump Administration would cut off funds to a state that has passed a law allowing faith-based agencies to abstain from providing some services based on their religious beliefs.  As to the public interest, the court found that it is in the interest of the public not to shut down any adoption or foster care agencies in light of the significant number of children in Michigan that need placements and the supportive services that St. Vincent provides, including to same-sex couples and their adoptive or foster children.

The court rejected the state’s argument that these issues had already been decided in Dumont  in favor of applying the non-discrimination policy to all agencies. The judge pointed out that Dumont was settled by the parties after Nessel changed the state’s position.  There was no judgment on the merits by the court, so there was no final judgment determining the underlying legal issue and no reason to find the issue res judicata.

The court’s use of the Supreme Court’s Masterpiece Cakeshop ruling in rendering this decision is noteworthy.  In Masterpiece, the Supreme Court refrained from ruling on the underlying constitutional question whether a baker has a 1st Amendment right to decline to produce custom wedding cakes for same-sex couples, instead ruling for the baker based on the Court’s detection in the record of overt hostility to religion by some of the members of the Colorado civil rights commission that was deciding that case at the administrative level.  Since then, several lower courts have focused on the Supreme Court’s “hostility to religion” language, and Judge Jonker does in this case, finding that Nessel’s “hostility to religion” expressed during her election campaign feeds into the question whether the state’s current position targets religion, even though the policy is facially neutral, applying the non-discrimination policy to all adoption and foster care services, not just faith-based ones.

Judge Jonkin prefaced his opinion with a careful statement about what was not at issue.  “This case is not about whether same-sex couples can be great parents,” he wrote.  “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.”  To the judge, this case was about whether St. Vincent can continue to operate in a way consistent with the religious creed to which it subscribes, or whether it must violate those religious beliefs if it is to continue providing adoption and foster care services.

The Becket Fund for Religious Liberty of Washignton D.C. provided legal representation to the plaintiffs and St. Vincent.  Michigan’s Department of the Attorney General represented the state defendants, and the U.S. Justice Department represented the federal defendants.  The plaintiffs in Dumont v. Gordon, Kristy and Dana Dumont, were represented as amici by attorneys from the ACLU and pro bono counsel from Sullivan & Cromwell LLP.

Although this was just a ruling on a preliminary injunction, it signals quite clearly that Judge Jonker’s final ruling on the merits is likely to go the same way.  The State could appeal the ruling to the 6th Circuit Court of Appeals.  Judge Jonker, who is the chief judge for the Western District of Michigan, was appointed by President George W. Bush in 2007.