Anti-Religious AG Twisted the Law Against This Catholic Agency

Official Portrait of Dana Nessel, attorney general of Michigan.

On Thursday, a district court judge granted a preliminary injunction to protect a Roman Catholic adoption agency from discriminatory state government action. In 2015, Michigan passed a law to protect the religious freedom of adoption agencies like St. Vincent Catholic Charities. Yet Democrat Dana Nessel, an open lesbian, demonized proponents of the law as “hate-mongers.” When she assumed office as Michigan’s attorney general, she effectively reversed the law, weaponizing the power of the state against this Catholic adoption agency.

St. Vincent Catholic Charities would refer children to potential adoptive parents regardless of sexual orientation, but it would not use its free speech to certify for adoption the homes of single people or same-sex couples. It would, however, refer same-sex couples and single people seeking to adopt to other certifying agencies. St. Vincent did not receive state payment for certification. State law protected this compromise, but the ACLU filed a lawsuit on behalf of two same-sex couples who claimed St. Vincent’s refusal to certify them constituted discrimination.

Michigan’s attorney general defended the state against the ACLU lawsuit, but Nessel immediately reversed course when she took office. In settling the lawsuit, Nessel promulgated a new rule that no longer allowed St. Vincent to refer unmarried or same-sex couples to other agencies for certification review. In other words, Nessel effectively abolished the 2015 law and revoked St. Vincent’s religious freedom and free speech rights, after campaigning against religious freedom as a form of “hate.”

Nessel revoked St. Vincent’s limited exception, which allowed the agency to refrain from endorsing same-sex couples and single people as parents. She sought to force the agency to endorse these people as parents, pushing a form of orthodoxy on the Catholic agency.

“Michigan’s Attorney General Dana Nessel and the ACLU thought they could hatch a backdoor agreement to force ideological conformity in the state’s foster care and adoption program and nothing could stop them – not state law, existing contracts or long-established practices,” Andrea Picciotti-Bayer, legal advisor for the Catholic Association Foundation, said in a statement on the case.

So St. Vincent and Chad and Melissa Buck — who adopted four siblings through St. Vincent — and Shamber Flore — who was placed with her family by St. Vincent — sued Nessel and other state actors in Michigan. They sued Michigan for violating the Free Exercise Clause by “adopting a policy requiring the State to discriminate against child placing agencies with religious objections to same-sex marriage” and granting exemptions selectively. They also claimed Michigan violated the agency’s free speech by conditioning St. Vincent’s license on the agency’s willingness to make affirmative statements that contradict its religious beliefs.

The lawsuit also alleges that Michigan retaliated against St. Vincent, violated the Fourteenth Amendment by preferring agencies with contrary religious beliefs ahead of St. Vincent, and enforcing federal law in a manner that burdens the agency’s religious freedom in violation of the Religious Freedom Restoration Act.

Nessel argued that St. Vincent’s religious freedom violated federal laws, endangering the $171 million Michigan receives for foster care and adoption programs. Yet it seems the Michigan government actors are using this as an excuse to defend their attack on religious freedom.

The judge did not rule in favor of the Catholic agency, but he did grant an injunction, allowing St. Vincent to operate according to the status quo before Nessel took over — while the full case is decided.

“A federal judge has stepped in to stop the [Nessel-ACLU] backroom deal and affirm the rule of law,” Picciotti-Bayer said. “Both state and federal law protect faith-based agencies like St. Vincent Catholic Charities to find loving homes for needy kids without having to abandon their religious teachings on the family.”

Importantly, the judge also denied a motion to remove Nessel from the lawsuit. Her animus against Catholic faith is central to the case, he ruled.

Based on the record to date, Defendant Nessel is at the very heart of the case. 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. Based on the present record, she was also a pivotal player in the State’s total reversal of position in the [earlier ACLU] litigation. It was her assessment of risk that led the State to move from defending St. Vincent’s position to abandoning it in the first month of her term – and this despite the 2015 law, the language of the contracts, and well- established practice. All of this supports a strong inference that St. Vincent was targeted based on its religious belief, and that it was Defendant Nessel who targeted it.

…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.

Nessel also attacked religious organizations this past March. After the far-left Southern Poverty Law Center (SPLC) released its deceptive list of “hate groups” — which lists mainstream conservative and Christian organizations, some of which advocate for religious freedom, along with Ku Klux Klan groups — Nessel launched a new “hate-crimes unit” targeted at the SPLC-accused groups. The American Freedom Law Center, one such accused group, filed a free-speech lawsuit against Nessel for this discriminatory action.

The judge’s ruling made no decision as to the full merits of the case, but merely by recounting the facts of the case, it shows why St. Vincent Catholic Charities should prevail. The ruling contrasted this case with the Third Circuit Court ruling in Fulton v. City of Philadelphia (2019), another religious freedom adoption battle which did not involve a sudden change in state policy and pushed for a much broader exemption.

Faith-based adoption agencies should enjoy broad exemptions in order to operate on their convictions. The facts in this case demonstrate that leftists with anti-religious animus will target even adoption agencies that enjoy very limited exemptions in the least defensible cases.

Follow Tyler O’Neil, the author of this article, on Twitter at @Tyler2ONeil.