Religious liberty scored a major victory Sept. 26 in Michigan, when a federal judge ruled that faith-based foster and adoption agencies may continue to operate, even while maintaining their beliefs about marriage and family.

In the case of Buck v. Gordon, Judge Robert J. Jonker, Chief Judge of the U.S. District Court for the Western District of Michigan, imposed a preliminary injunction which permits St. Vincent Catholic Charities to continue its work finding foster and adoptive homes for children, while holding its traditional Catholic belief that marriage as instituted by God is for one man and one woman. As they have in the past, St. Vincent Catholic Charities will not place children in homes with same-sex or unmarried parents; they will, instead, continue to refer those cases to agencies which do not have a religious confession which prevents them from recommending such couples to the State for licensure. The case will advance in the courts and, considering the volatility of the issue, is likely to reach the U.S. Supreme Court.

Judge Jonker, in an order which accompanied his opinion, prohibited the state from terminating or suspending its contracts with St. Vincent Catholic Charities while the case continues, citing its “protected religious exercise.”

The Case Against St. Vincent Catholic Charities

Judge Jonker, who was appointed to the bench by former President George W. Bush, wrote in his 32-page opinion:

This case is not about whether same-sex couples can be great parents. 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. In 2015, Michigan’s state legislature passed a law designed to ensure it could do just that. And when the State was first sued on the issue, the State defended the right of St. Vincent to maintain its religious belief while it placed children on a non-discriminatory basis in any home approved by the State.

So until last fall, the State of Michigan defended the right of religious organizations to maintain their faith commitments. What changed?

Michigan’s Biased Attorney General

In 2018, Michigan voters elected lesbian activist Dana Nessel as the State’s 54th Attorney General. During her campaign Nessel, who has a reputation as an outspoken anti-Catholic, referred to Catholic adoption agencies and their supporters as “hate-mongers” who disliked gay people more than they cared about children. But that is only one example of Nessel’s prejudice against people of faith: She has stepped up action on the statewide investigations into clergy abuse cases, again demonstrating anti-Catholic sentiment when she said that abuse victims should ask for the investigator’s “badge, but not their rosary.”

Nessel also opposed the 2019 hiring by Michigan State University of retired Judge Michael Talbot. Talbot enjoys a reputation as a competent judge; he served for two decades on the Michigan Court of Appeals and retired last year as Chief Justice. He was brought in by the university to help ensure its Title IX sexual assault investigations comply with several court rulings mandating universities maintain due process for all students. But Nessel took objection to his hiring, apparently because of his adherence to his Catholic faith.

Impatient with Nessel’s discriminatory rhetoric, David French writing at National Review said of the case,

...It turns out that such rhetoric has cost the state a crucial court ruling, granted a Catholic adoption agency a vital victory, and demonstrated – once again – that anti-religious bigotry can (and should) carry substantial legal costs.

Named Participants in the Case

In his action on Sept. 26, Judge Jonker removed individual plaintiffs from the case. Plaintiffs who had been named in the original filing included Chad and Melissa Buck, who adopted four siblings through St. Vincent. According to the court’s opinion, the Bucks see “fostering and adopting not just as a choice we made,” but as a ministry and a calling based on their Christian beliefs. They chose to work with St. Vincent “because we were comfortable working with an agency with a religious mission to serve children.” Melissa Buck is “aware of many [foster and adoptive] families who would not be willing or able to transfer their license to another agency and continue adopting or fostering children if St. Vincent were forced to close its foster and adoption programs.”

Also named was plaintiff Shamber Flore, who had been removed from her birth home when she was 5 years old after years of abuse, neglect and exposure to drugs, gangs and prostitution. St. Vincent placed her and her two siblings with an adoptive family, the Flores. The Flores “had previously tried to adopt with a state adoption agency and had a very negative experience.” They “would not have been able to continue with the adoption process if they had not found in St. Vincent a trusted partner and ally.”

The defendants in the case include Robert Gordon, Director of the Michigan Department of Health and Human Services; Herman McCall, Executive Director of the Michigan Children’s Services Agency; Dana Nessel, Michigan Attorney General; Alex M. Asar, Secretary of the U.S. Department of Health and Human Services; and the Department of Health and Human Services.

Response from Catholic Commentators

The Michigan Catholic Conference, the official voice of the Catholic Church in Michigan on matters of public policy, praised Judge Jonker’s statement, calling it an “excellent opinion.”

Lori Windham, senior counsel at Becket Law, a firm which defends the free exercise of all faiths, said:

Our nation is facing a foster care crisis, and we are so glad that Michigan’s foster children will continue having all hands on deck to help them find loving forever homes. The Bucks and St. Vincent Catholic Charities won a victory in Michigan, but there is still work to be done to ensure that faith-based agencies can contribute to ending our nation’s foster care crisis.

Andrea Picciotti-Bayer, legal adviser for The Catholic Association Foundation, issued a statement following news of the court victory:

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. A federal judge has stepped in to stop their backroom deal and affirm the rule of law. 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.

AG Nessel Remains Obstinate

Attorney General Nessel, meanwhile, has indicated that she will not accept Judge Jonker’s decision without objection, seeing it not as a case of religious liberty; rather, she thinks that the Church should have no influence on matters of State. On Thursday evening, Nessel wrote on Twitter,

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.

All, that is, except Catholics.