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Dana Nessel adopts Trump defense in heated LGBT Michigan adoption case

LANSING — Outspoken Michigan Attorney General Dana Nessel is taking a page out of President Donald Trump’s book by asking a federal judge to ignore her past rhetoric and suspend his recent religious freedom ruling in a contentious same-sex adoption case. 

In an emergency motion filed Friday, Nessel argued U.S. District Court Judge Robert Jonker erred when citing comments she made as a private citizen to suggest she harbors religious hostility toward a Catholic adoption agency that receives state funding but declines to place children with gay or transgender parents. 

Jonker, who last month issued a preliminary injunction preventing the state from terminating or suspending contracts with St. Vincent Catholic Charities, said Nessel’s past comments “raise a strong inference of a hostility toward a religious viewpoint.”

Three years before winning election as a progressive Democrat, Nessel called a 2015 religious exemption bill ultimately adopted by the Republican-led state Legislature a “win for the hatemonger” but a disaster for children in need of foster or adoptive parents. 

Nessel, a private attorney who was representing a lesbian couple in a separate case that helped overturn Michgian’s gay marriage ban, also said proponents of the adoption legislation should concede “you dislike gay people more than you care about the needs of foster care kids.”

Jonker pointed to those and other comments by Nessel in his ruling that allowed St. Vincent Catholic Charities to continue its practice of declining to work with gay parents. He accused Nessel of a “targeted attack on a sincerely held religious belief.”

But Nessel adopted a Trump defense on Friday as she urged Jonker to suspend his ruling while she and the state Department of Health and Human Services appeal to the Sixth Circuit Court of Appeals. 

The U.S. Supreme Court in June 2018 upheld a federal travel ban Trump enacted through executive order, ruling the policy itself was religiously “neutral” despite Trump’s repeated campaign claims he would pursue a temporary ban specifically targeting Muslims. 

Before taking office, Trump had called for a “total and complete shutdown of Muslims entering the United States until our county’s representatives can figure out what is going on” and claimed that “Islam hates us.” 

Despite those comments, Solicitor General Noel Francisco argued the president had made it “crystal clear” the enacted policy was not a Muslim travel ban.

The nation’s highest court, in a 5-4 opinion authored by Chief Justice John Roberts, said the president’s policy — the third iteration that restricted travel to the United States from seven countries, five of which have Muslim majorities — was religiously neutral and served a genuine national security interest given concerns over vetting. 

Nessel blasted that ruling last year but quoted Roberts in her Friday filing, arguing her comments on the faith-based adoption law “had even less significance” on the state’s non-discrimination policy than Trump’s statements about the travel ban.

“A federal court’s role is not to denounce an official’s statements but, instead, to ‘consider the significance of those statements in reviewing a . . . directive, neutral on its face,’” she wrote. “In its Opinion, this Court did what the Supreme Court said it cannot do. “

The high court’s decision in Trump v. Hawaii makes clear that her comments on the 2015 GOP law “have no relevance here,” wrote Nessel, who is a consistent Trump critic, opposed his travel ban and has joined several lawsuits challenging many of his most controversial policies.

The 2015 law allowed faith-based agencies that receive state funding to decline referrals for prospective gay, lesbian or transgender parents if working with them would conflict with their sincerely held religious beliefs. Instead they must refer parents to another agency or direct them to a list of other available options.

Nessel settled a suit over that law in March, making clear that non-discrimination clauses in state contracts with adoption or foster agencies preclude them from turning away otherwise qualified gay, lesbian or transgender parents or refusing to perform home studies. 

St. Vincent sued in April, arguing the settlement created a new policy that forced the agency to violate its religious principles or close foster care and adoption programs.

Jonker agreed. 

“What St. Vincent has not done and will not do is give up its traditional Catholic belief that marriage as instituted by God is for one man and one woman,” wrote the West Michigan judge, who was appointed by Republican former President George W. Bush.

The Michigan Catholic Conference praised Jonker’s decision, calling it an “excellent opinion.” Becket Law, a religious liberty legal group representing St. Vincent in the case, said the ruling “ensures that faith-based agencies can continue working with the state to find more homes for foster children.”

But Nessel’s office said Friday that Jonker wrongly accused the attorney general of being anti-Catholic. Her past statements did not target religion, nor does the non-discrimination clause in the standard contract for child placement agencies, her filing argued. 

“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,” Nessel said in a statement.  

“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.”

Nessel is seeking “expedited” consideration of her request to suspend Jonker’s ruling pending resolution of an appeal. The judge gave St. Vincent until Oct. 21 to respond.

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