October 11, 2019
LANSING - Saying that the “court’s opinion does not preserve a status quo but rather shatters it,” the Michigan Department of Attorney General filed an emergency motion for stay pending appeal in what is commonly referred to as the “same-sex adoption case.” The motion follows a stinging decision granting a preliminary injunction two weeks ago from U.S. District Court Judge Robert Jonker.
The motion asks Jonker to pause the decision he recently granted while the Attorney General and the Department of Health and Human Services appeal his decision that, among other things, wrongly accused Attorney General Dana Nessel of being anti-Catholic.
At the center of the dispute are children who are wards of the state and eligible for adoption through St. Vincent Catholic Charities, which has contracted with the state “to provide publicly funded foster care and adoption services to children in care regardless of its beliefs but on the same terms and conditions as other child place agencies.”
As explained in the Attorney General’s motion, the contractual language requires child placement agencies to inform the Department of Health and Human Services whether a prospective parent meets minimum licensing requirements required by law. “A child placement agency’s assessment of a prospective family speaks to whether the family meets state requirements for foster care providers and adoptive parents, and nothing more.”
The judge’s attacks on Nessel were highly unusual. “Rather than evaluating the Department’s long-standing, neutral and generally applicable policy, the Court attacks the attorney general … [and] erroneously concluded that the Department (of Health and Human Services’) policy must be read in the light of statements that Dana Nessel made as a private citizen – which the court misconstrued and took out of context…. Binding Supreme Court precedent prohibits this ….”
The U.S. Supreme Court’s decision in Trump v Hawaii said that, even when faced with numerous, slanderous statements – in this case, Trump’s statements specifically directed at Muslims and Islam – the Supreme Court refused to subject an otherwise neutral Presidential Proclamation to strict scrutiny because of the statements.
“A federal court’s role – according to the Supreme Court – is not to denounce a government official’s statements ….”
The motion continued, saying “… the Court’s focus on Attorney General Nessel’s statements and views expressed as a private citizen, candidate or public official was a clear error.”
Nessel’s comments, made as a private citizen in 2015, were specifically related to her disagreement with proposed legislation. The statements did not express religious hostility; instead, she said that “a proponent of this type of bill would have to concede that [s/he] dislikes gay people more than [s/he] cares about the needs of foster care kids and that “these types of laws are a victory for the hate mongers but again a disaster for the children and the state.”
Contrary to the judge’s conclusion, not one of the Attorney General’s statements references Catholicism or any religious belief or denomination and none contain a reference to traditional Catholic beliefs on marriage.
“Children who are wards of this state deserve families who love and respect them; they need and deserve forever families – not hostile court battles and rhetoric that overshadows the very purpose of this case,” said Nessel. “Judge Jonker’s comments unnecessarily inflamed an issue that at its core is about adhering to contractual obligations with the state; nothing more and nothing less.”