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Buck v. Gordon

United States District Court, W.D. Michigan, Southern Division

September 26, 2019

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.

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         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.

         Background

         A. The Parties

         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 “State Defendants” 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.)

         B. Michigan’s Foster and Adoption System

         “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. (Id., Ex. A, PageID.241-253.) 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 parents and their significant others, and other strengths and weaknesses.” (Id.) The evaluating CPA must note whether “anyone in the household [has] a physical or mental health diagnosis or condition that would make care of the child difficult” and, if so, “describe how it may affect the care of a child.” (Id., PageID.247.) The form asks the evaluating CPA to make a recommendation regarding licensure and to detail “[i]ssues to be considered in making placements.” (Id., PageID.251.)

         St. Vincent states that “as a Catholic organization, [it] cannot provide a written recommendation to the State evaluating and endorsing a family situation that would conflict with [its] religious beliefs.” (ECF No. 6-1, PageID.231.) “St. Vincent cannot provide written recommendations and endorsements of unmarried or LGBTQ couples consistent with its Catholic mission. Nor does St. Vincent want to send the State written recommendations that all unmarried or LGBTQ couples who come to it are unsuitable for adoption.” (Id.) When an unmarried or LGBTQ couple approaches St. Vincent to assist in the foster or adoption certification process, St. Vincent simply refers the couple to other agencies that can help. St. Vincent provides the prospective unmarried or LGBTQ couple with “written information on the State’s website and contact information for a list of other local adoption or foster care service providers” willing and able to assist the family. (Id., PageID.235.) Thus, “St. Vincent stands aside and allows other qualified agencies to make recommendations on behalf of unmarried or LGBTQ couples.” (Id.) Historically, the State of Michigan has permitted St. Vincent to refer prospective parents to other agencies if St. Vincent’s sincerely held religious beliefs prevented it from assisting with the certification and licensing recommendation process.[2]

         St. Vincent does not prevent any couples, same-sex or otherwise, from fostering or adopting. (Id., Page ID.235.) To the contrary, same-sex couples “certified through different agencies have been able to adopt children in St. Vincent’s care in the past” using the Michigan Adoption Resource Exchange (“MARE”) process. (Id., PageID.235-36.) MARE’s website “includes information about all children currently seeking adoption in the State[, ] … [and] families certified by any of the numerous private child placing agencies in Michigan are allowed to adopt every child on MARE’s website – no family is disqualified from adopting a child based solely on the agency with which they work.” (Id., PageID.236.) Through this process, any certified adoptive family, whether a same-sex couple or otherwise, may adopt children in St. Vincent’s care. (Id., PageID.235-36.)[3] St. Vincent “immediately places all children within its care on MARE.” (Snoeyink aff., ECF No. 42-4, PageID.1662.)

         C. Contracts and Funding

         The present contract for adoption services (the “adoption contract” or “contract”) between the State of Michigan and St. Vincent became effective on October 1, 2016 and has a termination date of September 30, 2019.[4] Under the heading “Compliance Requirements, ” the adoption contract states:

         c. The Contractor shall comply with the MDHHS non-discrimination statement:

Michigan Department of Health and Human Services (MDHHS) will not discriminate against any individual or group because of race, sex, religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs or disability.
The above statement applies to all MDHHS supervised children, and to all applications filed for adoptions of MDHHS supervised children, including MDHHS supervised children assigned to a contracted agency.

(ECF No. 6-12, PageID.352.)[5]

         Under the same heading, “Compliance Requirements, ” the adoption services contract states:

e. Under 1973 PA 116, as amended by 2015 PA 53, the Contractor has the sole discretion to decide whether or not to accept a referral from MDHHS. Nothing in this Agreement limits or expands the application of the Public Act.
Adoption referrals are initiated by MDHHS. Contractors may not transfer adoption cases to another child placing agency. After acceptance of an adoption referral, the Contractor may not transfer the case back to the Department, except upon the written approval of the County Director, the Children’s Services Agency Director, or the Deputy Director.

(ECF No. 6-12, PageID.352.)

         The present contract for foster services (the “foster contract” or the “contract”) between the State of Michigan and St. Vincent became effective on October 1, 2018 and terminates on September 30, 2021. (ECF No. 6-9, PageID.323.) The foster contract states that

[e]xcept as provided in subsection (h), the Contractor shall comply with the following requirements: …. The Contractor shall comply with the MDHHS non-discrimination statement:
Michigan Department of Health and Human Services (MDHHS) will not discriminate against any individual or group because of race, sex, religion, age, national origin, color, height, weight, marital status, gender identity or expression, sexual orientation, political beliefs, or disability.
The above statement applies to all licensed and unlicensed caregivers and families and/or relatives that could potentially provide care or are currently providing care for MDHHS supervised children, including MDHHS supervised children assigned to a contracted agency.

(ECF No. 34-7, PageID.1047-48.)[6] Subsection (h) provides

Under 1973, PA116, as amended by 2015 PA53, the Contractor has the sole discretion to decide whether to accept or not accept a referral from MDHHS. Nothing in this Agreement limits or expands the application of this Public Act.

(Id., PageID.1049.)

         The foster contract also states that

[i]f MDHHS makes a referral to a child placing agency for foster care case management services pursuant to a contract with the child placing agency, the child placing agency must accept or decline the referral within one hour of receipt of the referral….After acceptance of a foster care referral, the Contractor may not refer the case back to the Department except for the reasons outlined in the Children’s Foster Care Manual (“FOM”) or upon the written approval of the County Director, the Children’s Services Agency Director, or the Deputy Director.

(ECF No. 6-9, PageID.323.)

         Michigan pays private CPAs, including St. Vincent, for providing foster and adoptive placements “using a mix of state and federal funds, including funds from Title IV-E and Temporary Assistance for Needy Families block grants.” (ECF No. 6-1, PageID.232.) Michigan generally pays a per diem to the agency overseeing a foster placement only after the CPA places the child with a licensed family. (Id.) For most adoptions from foster care, “the State makes payments to the agency as part of the foster care system in pre-adoptive placements, and makes a lump-sum payment to the agency after the adoption is complete.” (Id., PageID.232-33) According to St. Vincent, “[p]rivate agencies generally do not bill the State, nor are they compensated, for performing home studies for prospective foster or adoptive parents.” (Id., PageID.233.) Subject to a narrow exception, [7] St. Vincent itself “pays for home studies, assessments, and its general recruitment with private funds in a cost center that is kept separate from the funding provided by the State for other child welfare activities.” (ECF No. 6-1, PageID.233)

         D. ...


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