U.S. District Judge Robert J. Yonker has halted implementation of a new policy in Michigan that forces faith-based adoption agencies to choose between violating their beliefs on same-sex marriage or closing their doors.  In his written opinion, Yonker says that the original policy in place for years already “ensures non-discrimination in child placements,” but the new policy “would replace this with a State-orthodoxy test that prevents Catholic believers from participating.”

As readers learned last April, this new policy was the work of Michigan’s renegade attorney general Dana Nessel, who used her authority to settle a pretextual discrimination lawsuit, Dumont v. Gordon, filed by the ACLU on behalf of two lesbian couples targeting Christian agencies. Nessel and the ACLU came up with a settlement agreement requiring all State contracts with private adoption agencies to include a “non-discrimination provision” that prohibits an adoption agency from even referring LGBTQ couples to another agency.  Yonker writes that, under the AG’s new rules, a faith-based adoption agency “must choose between its traditional religious belief, and the privilege of continuing to place children with foster and adoptive parents of all types.”

In response, Becket Law brought a lawsuit, Buck vs. Gordon, on behalf of an adopting couple, a former foster child, and St. Vincent Catholic Charities, challenging the new policy and alleging numerous constitutional violations.  The lawsuit names state and federal agency heads as defendants, including Attorney General Nessel. The preliminary injunction Yonker granted the plaintiffs last week halts the new policy from going into effect, maintaining the status quo until the case is fully litigated.  This means St. Vincent’s current contract with the state, due to expire on September 30, will remain in place. 

Yonker gives particular credit to Nessel for his decision to put the brakes on the Dumont policy -- namely, that it “targets St. Vincent’s religious beliefs.”  He explains how Nessel campaigned for AG in 2018 vowing not to defend Michigan’s religious freedom statute, “contending that the only purpose of the statute is discriminatory animus.”  Nessel also denounced everyone who supported the statute as “‘hate-mongers’ who disliked gay people more than they cared about children.”  In short, “Defendant Nessel made St. Vincent’s belief and practice a campaign issue by calling it hate.”  Once in office, Nessel completely reversed the state’s legal position in Dumont, no longer defending against the plaintiffs’ claims or defending the state’s religious freedom statute.  Instead, she joined the plaintiffs’ side, rushing to settle the case with the ACLU, which resulted in a settlement agreement that reinterprets Michigan law according to the LGBTQ agenda. “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.”  Nessel’s new policy, writes Yonker, is “a State-orthodoxy test that prevents Catholic believers from participating.”

But Yonker still isn’t finished with Nessel.  The state defendants in Buck have asked that Nessel be dismissed as a defendant, because she was acting in her official capacity as counsel for the state in Dumont, and had nothing to do with the state’s new policy.  But that doesn’t pass the smell test, and Judge Yonker says Nessel is not going anywhere.  Based on the record to date, he says:

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 Dumont litigation.

ACLU staff attorney Jay Kaplan is trying to downplay the significance of Nessel’s undeniably anti-religious remarks, telling the Detroit News that “[t]he judge’s opinion failed to note that some of those comments were made by Nessel in her capacity as a private citizen and others were taken out of context.” 

True, Nessel was still a private citizen when she attacked the 2015 religious freedom statute. She was still a private citizen when, during her campaign for the office of Attorney General, she vowed she would never defend the religious freedom law because it was “indefensible” and its only purpose was “discriminatory animus.”  But the “context” of Nessel’s remarks is her unceasing LGBT activism, and its relevance is that she’s still practicing that activism as attorney general. 

Judge Yonker’s preliminary injunction isn’t the end of the Buck lawsuit by a long shot.  But there’s room for optimism, because injunctions are only granted when a judge is persuaded that, among other things, “the movant has a strong likelihood of success on the merits” of the underlying litigation.  Yonker thinks St. Vincent has a strong likelihood of success, drawing a detailed picture of how the state, under Nessel’s counsel, targeted St. Vincent for their religious beliefs.  Regardless that “St. Vincent has never prevented a same-sex couple from fostering or adopting a child” -- and that St. Vincent does a great deal that directly benefits same-sex couples -- “[t]he 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.”  The state’s unnecessary new policy will never withstand the strict-scrutiny standard, since it “strongly suggests the state’s real goal is not to promote non-discriminatory child placements, but to stamp out St. Vincent’s religious belief and replace it with the State’s own.”

Dana Nessel would love to stamp out all Christian beliefs and replace them with her own. She’s already on record that she won’t enforce the state’s abortion ban if Roe v. Wade is overturned -- and she was Michigan’ attorney general when she said that. We already saw what happened when she tried to create a Stasi unit to investigate “hate crime incidents.”  She recently found a statute authorizing improvements on a vital underwater energy pipeline unconstitutional, on the rickety ground that the content of the statute isn’t adequately reflected in its title.  It’s only a marvelous coincidence that long before she was elected she was already demanding the pipeline be shut down.  She doesn’t seem to care about any law passed by the Michigan Legislature that she doesn’t like, and she seems unacquainted with large sections of the Bill of Rights.  Nessel is more interested in practicing lawfare than the law.

Let’s hope Judge Yonker is right, and St. Vincent wins their lawsuit.  But for now, it’s enough to see a clearly written legal opinion that spells out what so many of us in Michigan already know: that our attorney general is a radical leftist and a religious bigot, willing to abuse her office to impose her private agenda if she can get away with it. 

T.R. Clancy looks at the world from Dearborn, Michigan.  You can email him at trclancy@yahoo.com