➤ CATHOLIC CHARITIES, from p.12
agencies as well as the First and
14th Amendments of the US Constitution.
As Jonker described the dispute
here, it focuses only on St. Vincent’s
refusal to certify single people and
same-sex couples. The agency has,
in fact, placed children with samesex
couples who were certifi ed by
other agencies, according to the
agency.
In issuing his preliminary injunction,
Jonker had to fi rst conclude
that St. Vincent was likely to
succeed on the merits in its claim
that its constitutional rights had
been violated. The policy that Attorney
General Nessel adopted, he
found, was not protected by Supreme
Court precedents holding
that laws of general application
that are neutral with respect to
religion are not subject to religious
exemptions. Nessel’s rhetoric and
actions, Jonker concluded, “point
toward religious targeting.”
“The 2018 campaign for Michigan
Attorney General and General
Nessel’s statements create a strong
inference that the State’s real target
is the religious beliefs and confessions
of St. Vincent, and not
discriminatory conduct,” Jonker
wrote.
The judge accepted St. Vincent’s
assertion that it “has never prevented
a same-sex couple from fostering
or adopting a child,” since it
refers such couples to other agencies,
knowing they will certify the
couples if they meet the state’s objective
criteria.
And, Jonker pointed out, “St.
Vincent has actually placed children…
with same-sex adoptive
parents.” He accepted the agency’s
assurance that once an individual
or couple is certifi ed by a qualifi ed
agency, St. Vincent treats them like
any other prospective parent.
“The State is willing to prevent
St. Vincent from doing all this in
the future simply because St. Vincent
adheres to its sincerely held
religious belief that marriage is an
institution created by God to join
a single man to a single woman,”
Jonker wrote. “Because of that religious
belief, St. Vincent says it cannot
in good conscience review and
certify an unmarried or same-sex
parental application. St. Vincent
would either have to recommend
denial of all such applications, no
matter how much value they could
provide to foster and adoptive children;
or St. Vincent would have
to subordinate its religious beliefs
to the State-mandated orthodoxy,
even though the State is not compensating
them for the review services
anyway.”
Jonker concluded that the Michigan
dispute is materially distinguishable
from the Philadelphia
case decided earlier this year by
the Third Circuit Court of Appeals
because in Philadelphia the Catholic
agency was refusing to deal with
same-sex couples at all, while St.
Vincent refers them to other agencies
for certifi cation, and once they
are certifi ed, will place children
with them and provide supportive
services.
On the question of where the
public interest lies — another factor
in determining if a preliminary
injunction is warranted — Jonker
pointed to the signifi cant number
of children in Michigan who need
placements and the supportive
services that St. Vincent provides,
including to same-sex couples and
their adoptive or foster children.
The court rejected Nessel’s argument
that these issues had already
been decided in the prior litigation
in favor of applying the non-discrimination
policy to all agencies.
Jonker pointed out that the prior
litigation was settled by the parties
after the attorney general changed
the state’s position — there was
no judgment on the merits by a
court.
In concluding that Nessel had
demonstrated “hostility to religion”
in her change in state policy,
Jonker looked back to the Supreme
Court’s 2018 ruling in the Masterpiece
Cakeshop case, where it did
not decide the question of whether
baker Jack Phillips had a First
Amendment exemption from Colorado’s
nondiscrimination law in
his refusal to bake a wedding cake
for a gay couple, but rather found
that the process by which the
state adjudicated his assertion of
a religious freedom exemption was
marred by clear hostility.
Jonker was ruling only on a preliminary
injunction, but clearly
signaled where his ruling on the
merits is likely to end up.
➤ CATHEDRAL HIGH SCHOOL, from p.12
Dale, a gay scout leader who had
earlier risen to be an Eagle Scout.
In the US high court’s ruling, Chief
Justice William Rehnquist stated,
“The forced inclusion of an unwanted
person in a group infringes
the group’s freedom of expressive
association if the presence of that
person affects in a signifi cant way
the group’s ability to advocate public
or private viewpoints.”
He further wrote that it “seems
indisputable that an association
that seeks to transmit such a system
of values engages in expressive
activity.”
The New Jersey court had found
that the Scouts’ fi ring of Dale was
“antithetical to the organization’s
goals and philosophy.”
The US Supreme Court fi red
back, saying, “It is not the role of
the courts to reject a group’s expressed
values because they disagree
with those values or fi nd
them internally inconsistent.”
Echoes of Rehnquist’s 2000
opinion in the Scouts decision are
evident in the Trump administration’s
aggressive defense of the
Archdiocese in Payne-Elliott’s case
when the DOJ’s Statement of Interest
argues that “courts cannot
second-guess how religious institutions
interpret and apply their
own religious laws.”
The DOJ’s statement did not
come as a surprise to leading LGBTQ
friendly Catholic advocates
who have watched the administration
pick and choose which religious
liberties it wishes to defend.
And Francis DeBernardo, executive
director of New Ways Ministry,
an LGBTQ Catholic organization,
pointed to a different inconsistency,
telling Gay City News on September
27 that the Church routinely
gives a pass to those who violate
other Church teachings.
“What about Church teachings
on greed, the death penalty, unbridled
capitalism, destruction of the
environment, and war?” he asked.
“Even if the Archdiocese was legally
allowed to fi re the teacher,
that doesn’t mean it was the moral
course to take. The problem with
the archdiocese’s decision is that
they selectively use their religious
liberty to discriminate against
LGBT people.”
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