‘Religious liberty’ firm sues Nessel, DHHS over same-sex adoption rule

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A group that intervened in a 2017 lawsuit over same-sex adoption rights settled last month by Attorney General Dana Nessel sued her office on Monday, along with state and federal health agencies, claiming the settlement infringes on the religious liberties of the adoption agency in question.

The plaintiffs, foster parents Melissa and Chad Buck of Holt, foster child Shamber Flore, and St. Vincent Catholic Charities, claim in the lawsuit that Nessel’s terms would put the latter organization out of the adoption business.

Kristy and Dana Dumont | ACLU photo

In that settlement with a same-sex couple, Kristy and Dana Dumont of Dimondale, who said they were turned away for adoption by St. Vincent Catholic Charities and Bethany Christian Services because of their sexual orientation, Nessel, a Democrat, said that denying such couples adoption rights would be a “direct violation of the contract every child placing agency enters into with the state.”

Republican former Attorney General Bill Schuette fought that couple’s lawsuit while in office, defending a 2015 statute that St. Vincent claimed gave them the right to deny adoption and foster care on religious grounds.

Becket Law, a legal firm that describes its mission as “protect[ing] the free expression of all faiths,” is representing the plaintiffs, as it did in the motion that sought to stop the 2017 lawsuit. Attorney Nick Reaves told reporters Monday that religious groups across the state could be affected if held to that standard.

“In addition to St. Vincent, this settlement would affect any other organization, including all Catholic organizations throughout the state,” Reaves said. “The impact would be much larger than just the St. Vincent homes.”

Dana Nessel addresses MCRC on Feb. 1 | Ken Coleman

The named defendants in the case, Buck v. Gordon, are Robert Gordon, head of Michigan’s Department of Health and Human Services (DHHS); Herman McCall, head of the Michigan Children’s Services Agency; Nessel and Alex Azar, the U.S. Department of Health and Human Services Secretary, as well as the federal department itself.

In their complaint, the plaintiffs argue that under the settlement, “St. Vincent would not be able to provide its foster care or adoption ministry without a license and contract from the State, as the State is the sole source of public foster care and adoption referrals.” Reaves said that the “vast majority” of St. Vincent’s foster care and adoption work is done through contracts with the state.

“The argument that Becket is making is that essentially, the state is discriminating against them based on religion,” said Sam Bagenstos, a University of Michigan law professor and Democratic former candidate for Michigan’s Supreme Court.

Robert Gordon

“What the case comes down to is whether the state is, on the one hand, applying a neutral rule that says if you decide to assist with the foster care system as a private entity, you can’t discriminate in deciding whether to serve particular parents because of their sexual orientation, or if what’s going on is that the state is allowing providers to discriminate on some bases and not others, and making [that decision] based on the religion of providers.”

The case has national relevance, as Reaves alluded to similar lawsuits over alleged religious discrimination in Philadelphia and New York.

“If religious organizations can’t contract with states to provide services, that might cut off funding for homeless shelters, soup kitchens, or any other organizations that receive even a small portion of state money to care for people in need,” Reaves said Monday.

Bagenstos noted that the concept of religious liberty and discrimination as articulated by Becket and like-minded groups is still being shaped in the courts — and isn’t without a political charge.

“In these cases involving religious discrimination, there’s a lot of ferment in court; the law is very much developing, and the courts, in particular, with a lot of [President Donald] Trump appointees are increasingly willing to accept claims raised like those by [Becket],” Bagenstos said.

Melissa and Chad Buck | Becket Law

Trump weighed in on the debate personally at the National Prayer Breakfast in February, which the Buck family attended. Becket Law did a press release on Feb. 7 highlighting their participation.

“Unfortunately, the Michigan adoption charity that brought the Buck family together is now defending itself in court for living by the values of its Catholic faith,” Trump said. “We will always protect our country’s long and proud tradition of faith-based adoption.”

Reaves alluded to the political situation, as well, in his comments to reporters Monday, describing what he believes were the motivations behind Nessel’s settlement.

“The state’s decision to exclude certain agencies like St. Vincent because of their religious beliefs causes unnecessary harm to kids they could be serving now … just because the attorney general doesn’t like what St. Vincent believes, and has believed for over 75 years, and has been acting on in the foster care realm,” Reaves said.

Donald Trump | White House photo

Nessel spokeswoman Kelly Rossman-McKinney said in a statement Monday that the attorney general’s office had yet to review the complaint, but, “Based on the information provided during the plaintiffs’ counsel’s press conference, it appears that the plaintiffs’ attorneys do not understand the settlement agreement.

“Agencies have sole discretion to decide whether to accept [a DHHS] referral to provide foster care case management or adoption services, and the state cannot take adverse action against an agency that rejects a referral based on its sincerely held religious beliefs,” the statement continued.

“Upon accepting a referral, however, the law does not provide an agency with discretion to refuse to provide the accepted child or individual with state-contracted foster care case management or adoption services that conflict with its sincerely held religious beliefs.”

The case will be heard in the Southern Division of Michigan’s Western District Court.

Derek Robertson
Derek Robertson is a former associate editor of the Advance and is now a freelance writer in Chicago. Previously, he wrote for Politico Magazine in Washington. He is a Genesee County native and graduate of both Wayne State University, where he studied history, and the Medill School of Journalism at Northwestern University.

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