By David French
Friday, September 27, 2019
Last summer, in the days after the Supreme Court decided Masterpiece
Cakeshop on the narrow grounds that Colorado had violated Jack Phillips’s
religious-liberty rights by specifically disparaging his religious beliefs, a
bit of a skirmish broke out among conservative lawyers. How important was the
ruling? Did it have any lasting precedential effect?
For those who don’t recall, the Supreme Court ruled for
Phillips in large part because a commissioner of the Colorado Civil Rights
Commission called Phillips’s claim that he enjoyed a religious-freedom right
not to be forced to design a custom cake for a gay wedding a “despicable piece
of rhetoric.” The commissioner also denigrated religious-liberty arguments as
being used to justify slavery and the Holocaust.
While all agreed that it would have been preferable had
the court simply ruled that creative professionals could not be required to
produce art that conflicted with their sincerely held beliefs, the question was
whether Justice Anthony Kennedy’s strong condemnation of anti-religious bigotry
would resonate beyond the specific facts of the case. For example, what would
happen if, in a different case, state officials called faithful Christians who
seek to protect the religious freedom of Catholic adoption agencies
“hate-mongers”?
In the United States District Court for the Western
District of Michigan, 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.
The case is called Buck v. Gordon. My friends at
Becket represent St. Vincent Catholic Charities, a former foster child, and the
adoptive parents of five special-needs kids. The facts are relatively
complicated, but here’s the short version: St. Vincent upholds Catholic
teaching by referring same-sex and unmarried families who seek foster and
adoption recommendations and endorsements to agencies that have no objection to
providing those services. There is no evidence that St. Vincent has prevented
any legally qualified family from adopting or fostering a child. In fact,
same-sex couples “certified through different agencies” have been able to adopt
children in St. Vincent’s care.
In 2015 the state of Michigan passed a statute
specifically designed to protect the religious liberty of private, religious
adoption agencies. In 2018, however, Dana Nessel, a Democratic attorney
general, took office. During her campaign, she declared that she would not
defend the 2015 law in court, stating that its “only purpose” was
“discriminatory animus.” She also described proponents of the law as
“hate-mongers,” and the court noted that she believed proponents of the law
“disliked gay people more than they cared about the constitution.”
Then, in 2019, the attorney general reached a legal
settlement in pending litigation with the ACLU that essentially gutted the Michigan
law, implementing a definitive requirement that religious agencies provide
recommendations and endorsement to same-sex couples and banning referrals. The
plaintiffs sued, seeking to enjoin the relevant terms of the settlement, and
yesterday Judge Robert Jonker (a Bush appointee) granted their motion for a
preliminary injunction.
His reasoning was simple. There was ample evidence from
the record that the state of Michigan reversed its policy protecting religious
freedom because it was motivated by hostility to the plaintiffs’ faith. Because
Michigan’s targeted St. Vincent’s faith, its 2019 settlement agreement couldn’t
be truly considered a “neutral” law of “general applicability” that would grant
the state a high degree of deference in enforcement.
Instead, the state’s targeting led to strict scrutiny.
Here’s Judge Jonker:
Defendant Nessel made St. Vincent’s
belief and practice a campaign issue by calling it hate. She made the 2015
statute a campaign issue by contending that the only purpose of the statute is
discriminatory animus. After Defendant Nessel took office, the State pivoted
180 degrees. . . . The State also threatened to terminate its contracts with
St. Vincent. The Summary Statement’s conclusion – that if an agency accepts
even one MDHHS child referral for case management or adoption services, the
agency forfeits completely the right to refer new parental applicants to other
agencies based on its sincerely held religious beliefs – is at odds with the
language of the contracts, with the 2015 law, and with established State
practice. Moreover, it actually undermines the State’s stated goals of
preventing discriminatory conduct and maximizing available placements for
children.
The last point is key. As stated above, there was no
evidence that St. Vincent prevented any qualified couple from adopting. In
fact, if the state forced St. Vincent’s to choose between upholding the
teachings of its faith or maintaining its contractual relationship with the
state, then it risked shrinking the available foster or adoption options
in the state of Michigan. The state demonstrated that it was more interested in
taking punitive action against people of faith than it was in maintaining
broader access to foster and adoption services for its most vulnerable
citizens.
The judge rightly called the state’s actions a “targeted
attack on a sincerely held religious belief.” Once again, Masterpiece
Cakeshop pays religious-liberty dividends. Once again, a court declares —
in no uncertain terms — that in the conflict between private faith and public
bigotry, religious liberty will prevail.
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