Buck v. Gordon
| Citation | 429 F.Supp.3d 447 |
| Decision Date | 26 September 2019 |
| Docket Number | Case No. 1:19-CV-286 |
| Parties | Melissa BUCK, et al., Plaintiffs, v. Robert GORDON, in His Official Capacity as Director of the Michigan Department of Health and Human Services, et al., Defendants. |
| Court | U.S. District Court — Western District of Michigan |
Jacob Coate, Mark Leonard Rienzi, Nicholas Robert Reaves, Lori Windham, The Becket Fund for Religious Liberty, Washington, DC, William R. Bloomfield, Catholic Diocese of Lansing, Lansing, MI, for Plaintiffs.
Anthony Joseph Sukkar, Elizabeth R. Husa Briggs, Joshua Sean Smith, Precious Synott Boone, Toni L. Harris, MI Dept of Attorney General (Health, Education & Family), Lansing, MI, Christopher Alan Bates, U.S. Department of Justice (Civil), Washington, DC, Jeanne Frances Long, U.S. Attorney, Grand Rapids, MI, for Defendants.
INTRODUCTION
This case is not about whether same-sex couples can be great parents. They can. No one in the case contests that. To the contrary, St. Vincent has placed children for adoption with same-sex couples certified by the State.
What this case is about is whether St. Vincent may continue to do this work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman. In 2015, Michigan's state legislature passed a law designed to ensure it could do just that. And when the State was first sued on the issue, the State defended the right of St. Vincent to maintain its religious belief while it placed children on a non-discriminatory basis in any home approved by the State.
But that changed in the wake of the 2018 general election. While a candidate for Michigan Attorney General, Dana Nessel called the law indefensible. She indicated that she would not defend the State's position in the litigation challenging the law, because she "could not justify using the state's money" to defend "a law whose only purpose is discriminatory animus."
Leading up to the campaign, she described proponents of the law as "hate-mongers" who disliked gay people more than they cared about children. Candidate Nessel won the election, and shortly after taking office, she changed the State's position toward St. Vincent. Under the Attorney General's current interpretation of Michigan law and the parties' contracts, St. Vincent must choose between its traditional religious belief, and the privilege of continuing to place children with foster and adoptive parents of all types.
Because the record demonstrates that the State's new position targets St. Vincent's religious beliefs, strict scrutiny applies, and St. Vincent has established a basis for preliminary injunctive relief to preserve the status quo while the validity of the State's new position is tested in plenary litigation.
St. Vincent Catholic Charities ("St. Vincent") is a non-profit, faith-based organization based in Lansing, Michigan. (Snoeyink aff., ECF No. 6-1, PageID.228-229.) Its mission is "to share the love of Christ by performing the corporal and spiritual works of mercy." (Id. , PageID.229.) St. Vincent focuses on serving children and families and provides a range of services, including, without limitation, adoption and foster placement; professional mental health and substance abuse counseling; marriage and family counseling; and refugee resettlement. (Id. , PageID.228-229.) This case centers on St. Vincent's adoption and foster placement services.
Plaintiffs Chad and Melissa Buck have adopted four siblings through St. Vincent. (M. Buck aff., ECF No. 6-2, PageID.262.) The Bucks "see fostering and adopting not just as a choice we made, but as a ministry and as a calling" based on their Christian beliefs. (Id. ) They chose to work with St. Vincent "because we were comfortable working with an agency with a religious mission to serve children." (Id. ) Melissa Buck notes that St. Vincent "provides ongoing services to our family[,]" including by facilitating a monthly parent support group that is the "only parent support group for foster parents anywhere in the tri-county area." (Id. , PageID.265.) The group is open to any parents, including same-sex couples, and same-sex couples have attended from time to time. (Id. ) The Bucks have worked with St. Vincent to recruit foster and adoptive families, and they sometimes help lead the parent support group. (Id. ) Melissa Buck is "aware of many [adoptive and foster] families who would not be willing or able to transfer their license to another agency and continue adopting or fostering children if St. Vincent were forced to close its foster and adoption programs." (Id. , PageID.266-67.)
Plaintiff Shamber Flore was removed from her birth home when she was five years old after years of abuse, neglect, and exposure to drugs, gangs, and prostitution. (Flore aff., ECF No. 6-3, PageID.272.) St. Vincent placed her and her two siblings with an adoptive family, the Flores. (Id. ) The Flores "had previously tried to adopt with a state adoptive agency and had a very negative experience." (Id. ) They "would not have been able to continue with the adoption process if they had not found in St. Vincent a trusted partner and ally." (Id. ) The Flores have adopted sixteen children over the past fourteen years. (Id. ) Ms. Flore "mentor[s] other foster kids and youth at St. Vincent who have dealt with trauma and abuse." (Id. , PageID.273.) She shares her experience and "encourage[s] them that they, too, can overcome great hardship and find happiness." (Id. ) If St. Vincent had to cease its adoption and foster services, Ms. Flore "would lose the opportunity to mentor many of these youth as a volunteer at St. Vincent." (Id. )
Defendant Robert Gordon is the Director of Michigan Department of Health and Human Services ("MDHHS" or "the Department"), which is the state agency responsible for foster care and adoption services. (ECF No. 1, PageID.7.) Defendant Herman McCall is the Executive Director of Michigan's Children's Services Agency ("CSA"), which is a sub-agency of MDHHS that oversees the work of all private child placing agencies. (Id. , PageID.8.) Defendant Dana Nessel is the Attorney General of the State of Michigan. (Id. ) These three Defendants (collectively, the are sued in their official capacities only. Defendant Alex M. Azar is the Secretary of the United States Department of Health and Human Services ("HHS") and is sued in his official capacity only. (Id. , PageID.8-9.) Defendant HHS is responsible for the promulgation, administration, and enforcement of federal regulations challenged in this case. (Id. , PageID.9.)
"Michigan has a chronic shortage of foster and adoptive homes." (ECF No. 6-1, PageID.286.) In Michigan, there are "approximately 13,000 children in foster care, about 2,000 of whom have a permanency goal of adoption." (Neitman aff. ECF No. 34-5, PageID.971.) MDHHS administers the State of Michigan's Foster Care and Adoption Services programs as the Title IV-E agency in Michigan. (Goad aff., ECF No. 34-2. PageID.966.) MDHHS "holds 137 contracts with 57 private child placing agencies, or CPAs, to provide foster care or adoption services throughout Michigan." (Id. )1 MDHHS not only contracts with CPAs to provide foster and adoption services but also is itself a CPA that may provide foster care services. (Id. , PageID.967.) Most adoption services in Michigan are privatized. (Id. ) St. Vincent provides both foster and adoption services in Michigan under contracts with the State. "[I]n the last four fiscal years, St. Vincent has served an average of 74 children in its foster care program every year, and through its work over 100 adoptions for foster children were finalized." (Snoeyink aff., ECF No. 6-1, PageID.228.)
To become a foster or adoptive parent in Michigan, a person or couple must first obtain a license from the State. Private CPAs not only place children in licensed foster and adoptive homes, but also assist prospective foster or adoptive parents in applying to the State for licensure. As part of the application process, a CPA performs a home evaluation of the prospective parent or parents that includes a written assessment and a recommendation that a license be granted or denied. Based partly on the CPA's recommendation, the State itself decides whether to license the prospective foster or adoptive parent.
MDHHS establishes the criteria to consider in performing a home evaluation. (Neitman aff., ECF No. 34-3, PageID.973.) Factors for consideration include, without limitation, the " '[s]trengths and weaknesses' of the parents and the ‘[s]trengths of the relationship’ between the couple[;] .... marital and family status and history, including current and past level of family functioning and relationships, parenting skills and childrearing techniques, values and the role of religion in the family." (Id. ) A home evaluation entails "an exhaustive review of the family's eligibility" that includes an assessment of "the relationships between all the adults living in the home[.]" (Snoeyink aff., ECF No. 6-1, PageID.229-30.) The State's required home evaluation form spans twelve pages. .) The form calls for subjective as well as objective determinations. For example, the evaluating CPA must describe for each adult member of the household "strengths and weaknesses, worker's assessment in addition to what the applicant tells you." (Id. , PageID.245.) Similarly, the form asks the evaluating CPA to describe "marital and family status and history" and to include as to the current relationship "strengths of relationship, areas of work or attention .... level of satisfaction, stability." (Id. , PageID.246.) For each child living in the home, the form asks the evaluating CPA to interview the child and describe the "[w]orker's assessment of the child's adjustment, development, special needs, relationships with...
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