Case 1:19-cv-00286-RJJ-PJG ECF No. 6 filed 04/16/19 PageID.

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IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MELISSA BUCK; CHAD BUCK;

and SHAMBER FLORE;
ST. VINCENT CATHOLIC
CHARITIES,

Plaintiffs, No. 1:19-CV-00286

v. HON. ROBERT J. JONKER

ROBERT GORDON, in his official

capacity as the Director of the Oral Argument Requested
Michigan Department of Health
and Human Services; HERMAN
MCCALL, in his official capacity
as the Executive Director of the
Michigan Children’s Services
Agency; DANA NESSEL, in her
official capacity as Michigan
Attorney General; ALEX AZAR, in
his official capacity as Secretary of
Health and Human Services;
UNITED STATES DEPARTMENT
OF HEALTH AND HUMAN
SERVICES,

Defendants.

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’

MOTION FOR A PRELIMINARY INJUNCTION
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................................................iii

INTRODUCTION ....................................................................................... 1

BACKGROUND .......................................................................................... 3

A. Faith-Based Agencies Help Address Michigan’s Shortage of

Foster Families. ............................................................................ 3

B. Foster Care and Adoption Licensing Process. ................................. 7

C. Placing Children in Loving Homes. ................................................ 14

D. State and Federal Funding. ............................................................ 15

E. Plaintiffs. ......................................................................................... 16

1. St. Vincent Catholic Charities. .............................................. 16

2. Melissa and Chad Buck. ........................................................ 18

3. Shamber Flore. ....................................................................... 21

F. Michigan Protects Faith-Based Agencies....................................... 22

G. The Legal Challenge and the Change of Policy ............................. 24

H. The Present Lawsuit ....................................................................... 27

STATEMENT OF LAW ............................................................................ 28

ARGUMENT ............................................................................................. 29

A. Plaintiffs have a strong likelihood of success on the merits. ........ 29

1. Defendants’ policy violates the Free Exercise Clause .......... 29

i. Defendants’ policy is not neutral and generally

applicable and is thus subject to strict scrutiny. .............. 30

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ii. Defendants’ policy does not survive strict scrutiny. .......... 40

2. The State’s policy violates the Free Speech Clause. ............ 43

i. MDHHS’ policy unconstitutionally compels speech by

private actors. .................................................................... 43

ii. MDHHS’ policy places an unconstitutional condition

on St. Vincent’s speech. ...................................................... 45

3. Injunctive relief is warranted against the Federal

Defendant ............................................................................... 48

B. Plaintiffs will be irreparably harmed absent an injunction. ......... 51

C. An injunction is in the public interest............................................ 52

D. The balance of the equities favors Plaintiffs .................................. 53

CONCLUSION ......................................................................................... 53

CERTIFICATE OF COMPLIANCE ........................................................ 55

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TABLE OF AUTHORITIES

Page(s)

Cases

Agency for Int’l Dev. v. AOSI,

570 U.S. 205 (2013) .................................................................. 45, 46, 47

Alpha Delta Chi-Delta Chapter v. Reed,

648 F.3d 790 (9th Cir. 2011) ................................................................ 33

Axson-Flynn v. Johnson,
356 F.3d 1277 (10th Cir. 2004) ............................................................ 31

Blackhawk v. Pennsylvania,
381 F.3d. 202 (3d Cir. 2004) ................................................................ 31

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ........................................................................ 41, 45

Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993) ............................................................ 30, 35, 41, 46

City of Pontiac Retired Emps. Ass’n v. Schimmel,

751 F.3d 427 (6th Cir. 2014) ................................................................ 28

Connection Distrib. Co. v. Reno,

154 F.3d 281 (6th Cir. 1998) .................................................................. 1

In re DeLorean Motor Co.,

755 F.2d 1223 (6th Cir. 1985) .............................................................. 29

Employment Div., Dept. of Human Resources of Ore. v.

Smith,
494 U.S. 872 (1990) ........................................................................ 30, 51

FCC v. League of Women Voters of California,

468 U.S. 364 (1984) .............................................................................. 46

G & V Lounge, Inc. v. Michigan Liquor Control Comm’n,

23 F.3d 1071 (6th Cir.1994) ................................................................. 52

iii
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Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,

515 U.S. 557 (1995) .............................................................................. 47

Janus v. Am. Fed’n of State, Cty. & Mun. Emps.,

138 S. Ct. 2448 (2018) .................................................................... 47, 49

Kennedy v. Bremerton Sch. Dist.,

139 S. Ct. 634 (2019) .............................................................................. 1

Locke v. Davey,
540 U.S. 712 (2004) .............................................................................. 40

Masterpiece Cakeshop Ltd. v. Colo. Civil Rights Comm’n,

138 S. Ct. 1719 (2018) .......................................................................... 36

Newsom v. Norris,
888 F.2d 371 (6th Cir. 1989) ................................................................ 51

NIFLA v. Becerra,
138 S. Ct. 2361 (2018) .......................................................................... 48

PACCAR Inc. v. TeleScan Techs., LLC,

319 F.3d 243, 249 (6th Cir. 2003) ........................................................ 29

Sherbert v. Verner,
374 U.S. 398 (1963) ......................................................................... 30-31

Susan B. Anthony List v. Driehaus,

814 F.3d 466 (6th Cir. 2016) .......................................................... 29, 40

Teen Rach v. Udow,

389 F.Supp.2d 827 (W.D. Mich. 2005) ................................................ 40

Tenafly Eruv Ass’n, Inc. v. Borough of Tenafly,

309 F.3d 144 (3d Cir. 2002) ................................................................. 33

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017) .................................................................... 38, 40

United Food & Commercial Workers Union, Local 1099 v.

Sw. Ohio Reg’l Transit Auth.,
163 F.3d 341 (6th Cir. 1998) ................................................................ 52
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United States v. Playboy Entm’t Grp., Inc.,

529 U.S. 803 (2000) .............................................................................. 45

Ward v. Polite,
667 F.3d 727 (6th Cir. 2012) ........................................................ passim

Wooley v. Maynard,
430 U.S. 705 (1977) .............................................................................. 47

Statutes

42 U.S.C. 2000bb ...................................................................................... 49

42 U.S.C. § 604a........................................................................................ 50

2015 Public Act No. 53 ................................................................. 22, 41, 42

2015 Public Act No. 54 ............................................................................. 22

2015 Public Act. No. 55 ............................................................................ 22

Mich. Comp. Laws Ann. § 722.124e ................................................. passim

Mich. Comp. Law § 722.115 ....................................................................... 4

Mich. Comp. Law § 722.117 ....................................................................... 4

Mich. Comp. Law § 722.118 ....................................................................... 4

Regulations

45 CFR 75.300(c)....................................................................................... 49

Mich. Admin. Code R. 400.12201 ............................................................... 4

Mich. Admin. Code R. 400.12304 ............................................................... 5

Mich. Admin Code R. 400.12706 ................................................................ 5

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Other Authorities

AdoptUSKids, Minority Specializing Agency and Resource

Directory,
https://s3.amazonaws.com/becketnewsite/minority-
specializing-agency-directory.pdf .................................................. 12, 34

Boys to Men Group Home, LLC, Who We Are,

http://www.boys2mengrouphome.com/about_us.html ....................... 35

Child Trends, Transition-Age Youth in Foster Care in

Michigan, https://www.childtrends.org/wp-
content/uploads/2017/09/Transition-Age-
Youth_Michigan.pdf ........................................................................... 3, 4

Child Welfare League of America & Lambda Legal, Getting

Down to Basics: Tools to Support LGBTQ Youth in Care
(2012),
http://www.lambdalegal.org/sites/default/files/gdtb_2013_
complete.pdf ......................................................................................... 13

U.S. Department of Health & Human Services, Children’s

Bureau, https://cwoutcomes.acf.hhs.gov/
cwodatasite/pdf/michigan.htm .............................................................. 3

Children’s Rights, Aging Out,

http://www.childrensrights.org/newsroom/factsheets/aging
-out/ ......................................................................................................... 3

Mark E. Courtney, Amy Dworsky, Adam Brown, Colleen

Cary, Kara Love & Vanessa Vorhies, Midwest evaluation
of the adult functioning of former foster youth: Outcomes
at age (2011) https://www.chapinhall.org/wp-
content/uploads/Midwest-Eval-Outcomes-at-Age-26.pdf; .................... 4

Department of Human Services, Finding an Agency That’s

Right for You,
https://www.michigan.gov/documents/dhs/FosterCareAge
ncy
Checklist_Comm4-12_381389_7.pdf ..................................................... 9

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Department of Human Services, Foster Care Agency

Checklist,
https://www.michigan.gov/documents/dhs/FosterCareAge
ncyChecklist_Comm4-12_381389_7.pdf ............................................. 10

Erick Eckholm, Offering Help for Former Foster Care Youths,

The New York Times (Jan. 27, 2007)
https://www.nytimes.com/ 2007/01/27/us/27foster.html ...................... 4

Fox 2 Detroit, Opponents say adoption bill discriminates

against gays and lesbians (Mar. 4, 2015, 5:34 PM)
http://www.fox2detroit.com/news/opponents-say-adoption-
bill-discriminates-against-gays-and-lesbians ..................................... 37

Guiding Harbor, Girlstown Residential,

http://www.guidingharbor.org/ programs/girlstown-
residential............................................................................................. 35

Ellen Herman, Kinship by Design: A History of Adoption in

the Modern United States, 125 (2008) ................................................. 12

House Fiscal Agency, Budget Briefing: HHS Human

Services,
https://www.house.mi.gov/hfa/PDF/Briefings/HHS_HS_Bu
dgetBriefing_fy18-19.pdf; .................................................................... 15

HRC, All Children All Families and Non-Affirming Potential

Foster Families (Oct. 3, 2018),
https://register.gotowebinar.com/register/41809791174810
06082 .................................................................................................... 13

HRC, All Children - All Families Participating Agencies,

https://assets2.hrc.org/files/assets/resources/ACAF_Agenc
y_Database.pdf?_ga=2.176489573.1586353695.155498929
0-1393757968.1551898236 .................................................................. 13

HRC, All Children - All Families: Tiers of Recognition,

https://www.hrc.org/resources/all-children-all-families-
tiers-of-recognition ............................................................................... 13

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Human Rights Campaign Foundation, Sample LGBTQ

Affirming Homestudy Questions & Rationale,
https://assets2.hrc.org/files/assets/resources/HRC_ACAF_
LGBTQ_Affirming_Homestudy_Questions_And_Rationale
.pdf ........................................................................................................ 11

Beth LeBlanc, Nessel plans settlement talks in lawsuit

targeting same-sex adoption refusals, The Detroit News
(Jan. 24, 2019, 1:11 PM) ...................................................................... 26

Letter from Steven Wagner, HHS Principal Deputy

Assistant Secretary, Administration for Children and
Families to Henry McMaster, Governor, South Carolina
(Jan. 23, 2019),
https://governor.sc.gov/sites/default/files/Documents/news
room/HHS%20Response%20Letter%20to%20McMaster.pd
f ............................................................................................................. 53

Barbara Melosh, Strangers and Kin: The American Way of

Adoption 77-79 (2002) .......................................................................... 13

Michigan Adoption Resource Exchange, Find a Licensed

Agency, http://mare.org/For-Families/New-to-
Adoption/Find-a-Licensed-Agency ...................................................... 34

Michigan Adoption Resource Exchange, Map,

https://mare.org/Agency-Map .............................................................. 11

Michigan Department of Health & Human Services, Foster

Care, http://www.michigan.gov/mdhhs/0,5885,7-339-
73971_7117---,00.html ....................................................................... 3, 9

Michigan Department of Health & Humans Services, Initial

Foster/Adoption Evaluation Form,
https://www.michigan.gov/documents/mdhhs/CWL-
3130_527684_7.docx............................................................................. 48

National One Church One Child, Inc., About Us,

http://www.nationalococ.org/about.html ............................................... 5

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New York City Government, Respectfully Asking Sexual

Orientation and Gender Identity (SOGI) Questions,
https://www1.nyc.gov/assets/acs/pdf/lgbtq/Respectfully_As
king_SOGI_Questions.pdf;https://www1.nyc.gov/assets/ac
s/pdf/lgbtq/Respectfully_Asking_SOGI_Questions.pdf ...................... 13

J.R. Perry, Promising Practices for Serving Transgender &

Non-Binary Foster and Adoptive Parents, Human Rights
Campaign Foundation 41-42 (2017),
https://assets2.hrc.org/files/assets/resources/HRC_ACAF_
Promising_Practices_Serving_Transgender_Non-
Binary_Parents.pdf .............................................................................. 10

Rick Pluta, Faith-based adoption bills headed to House floor,

Michigan Radio NPR (Mar. 4, 2015),
https://www.michiganradio.org/post/faith-based-adoption-
bills-headed-house-floor ....................................................................... 37

Ruth Ellis Center, Ruth’s House,

http://www.ruthelliscenter.org/what-we-do/ruths-house/ .................. 35

Sault Ste. Marie Tribe of Chippewa Indians, Child

Placement, https://www.saulttribe.com/membership-
services/acfs/child-placement ........................................................ 12, 34

Michigan Government, Summary Statement of Dumont v.

Gordon Settlement Agreement (March 22, 2019),
https://www.michigan.gov/documents/ag/03.22.19_FINAL
_Dumont_settlement_summary_650097_7.pdf ............................ 27, 49

Kristi Tanner, More than 900 Michigan foster care youth age
out, Detroit Free Press (Jan. 31, 2015)
https://www.freep.com/story/ opinion/contributors/raw-
data/2015/01/31/michigan-foster-care-youth/22621127 ....................... 3

Wayne Center, Foster Parenting: Wayne Center’s Written

Needs Statement,
http://www.waynecenter.org/services/foster-care ......................... 12, 34

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Ed White, Dem AG candidate: Adoption law discriminates

against gays, Associated Press (Sept. 27, 2018),
https://apnews.com/a1fc021e8e2e4b3b829586
ba56ad9c0 ............................................................................................. 25

Julie Williams, AG Nessel to enter lawsuit in same-sex

adoption bans, WILX 10 (Jan. 25, 2019),
https://www.wilx.com/content/news/Michigan-AG-to-
enter-lawsuit-in-same-sex-adoption-bans-504852332.html .............. 37

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INTRODUCTION

Michigan needs more foster and adoptive parents in its child

welfare system. For years, it has relied on a diverse group of private

agencies who recruit and train foster parents, conduct home studies,

make written recommendations about potential foster and adoptive

families to the state, and then help and support those parents as they

continue with the often heart-wrenching foster and adoption process.

Some of those agencies are faith-based. That’s true of St. Vincent

Catholic Charities, which performs works of mercy as a way of living out

its Catholic faith. St. Vincent partners with foster parents like Chad and

Melissa Buck, and former foster children like Shamber Flore to provide

a wide variety of foster and adoptive services.

Michigan has repeatedly recognized the value of these agencies,

and has partnered with them successfully for many years. Michigan

knew about the agencies’ diverse religious beliefs and worked to

accommodate them. Three weeks ago, that all changed. The State

announced a new policy. Under that policy, child welfare agencies must

provide certifications for same-sex couples, even if those certifications

violate their religious beliefs. If agencies refuse to engage in speech and

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actions that violate their religious beliefs, they will lose the ability to

provide foster care or adoption services for any children in the child

welfare system. Successful foster care and adoption programs that have

served thousands of Michigan children will have no choice but to close.

St. Vincent, as part of living out its Catholic faith, cannot engage in

speech endorsing unmarried and same-sex relationships by providing

written recommendations to the State regarding their relationships. If

such a couple seeks St. Vincent’s services, the agency refers them to other

nearby agencies who can help them. There is no evidence that any

unmarried or same-sex couple has been unable to foster or adopt because

of St. Vincent’s religious beliefs. To the contrary, gay couples who wish to

help children have been able to adopt foster children in St. Vincent’s care

in the past after receiving their evaluation and written recommendation

from a different agency.

But that is not enough for the State, which demands that

St. Vincent conform to the State’s new orthodoxy or else be labeled a

“hatemonger,” ineligible to serve children in need. Urgent relief is

necessary to safeguard the rights of St. Vincent, the Bucks, and Ms. Flore

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and to ensure they can continue to serve children in need—as they have

for decades—while this case proceeds.

BACKGROUND

A. Faith-Based Agencies Help Address Michigan’s Shortage of

Foster Families

Michigan has a chronic shortage of foster and adoptive homes. Ex.1,

¶9; Ex.2, ¶11; Ex.3, ¶5. There are nearly 12,000 children in foster care in

Michigan, all of whom need safe homes. 1 And as of 2017, over 3,300

children in Michigan are waiting for a family to be willing to adopt them. 2

Because there are not enough families, more than 600 of these children

“age out” of foster care every year. 3 They exit the foster system at age 18

without any permanent family, and many lack the resources and skills

to successfully transition into adulthood. 4 This number is on the rise, 5

1 Michigan Department of Health & Human Services, Foster Care,

http://www.michigan.gov/mdhhs/0,5885,7-339-73971_7117---,00.html.
2 This means that these children have a goal of adoption and have had parental rights

terminated. U.S. Department of Health & Human Services, Children’s Bureau,

https://cwoutcomes.acf.hhs.gov/cwodatasite/pdf/michigan.html.
3 Child Trends, Transition-Age Youth in Foster Care in Michigan,
https://www.childtrends.org/wp-content/uploads/2017/09/Transition-Age-
Youth_Michigan.pdf; Kristi Tanner, More than 900 Michigan foster care youth age
out, Detroit Free Press (Jan. 31, 2015) https://www.freep.com/story/
opinion/contributors/raw-data/2015/01/31/michigan-foster-care-youth/22621127/.
4 Children’s Rights, Aging Out, http://www.childrensrights.org/ newsroom/fact-

sheets/aging-out/ (last visited April 16, 2019).

5 Child Trends, Transition-Age Youth in Foster Care in Michigan,

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and a recent study shows these children are much less likely to graduate

high school, let alone college, and far more likely to end up in poverty. 6

Because the State cannot meet this acute need on its own, it relies

on over 90 private child placing agencies (agencies) to help with foster

care, and over 60 for adoption. Ex.4 at 4. Indeed, as the State has

recognized, “[h]aving as many possible qualified adoption and foster

parent agencies in this state is a substantial benefit to the children of

this state.” 7

These agencies oversee foster homes and adoption placements,

services for which they are compensated by the State. Ex.1, ¶10. An

agency may only oversee foster care placements and facilitate adoptions

for foster children if it is licensed by (and signs a contract with) the

Michigan Department of Health and Human Services (MDHHS). 8

Private agencies evaluate and recruit families they wish to recommend

https://www.childtrends.org/wp-content/uploads/2017/09/Transition-Age-
Youth_Michigan.pdf (last visited April 16, 2019).
6 Mark E. Courtney, Amy Dworsky, Adam Brown, Colleen Cary, Kara Love &

Vanessa Vorhies, Midwest evaluation of the adult functioning of former foster youth:
Outcomes at age 26 (2011) https://www.chapinhall.org/wp-content/uploads/Midwest-
Eval-Outcomes-at-Age-26.pdf; Erick Eckholm, Offering Help for Former Foster Care
Youths, The New York Times (Jan. 27, 2007), https://www.nytimes.com/
2007/01/27/us/27foster.html.
7 Mich. Comp. Laws Ann. § 722.124e.
8 Mich. Comp. Laws §§ 722.115, 722.117, 722.118; Mich. Admin. Code R. 400.12201.

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to MDHHS for licensure as foster or adoptive families. 9 MDHHS then

makes the ultimate determination regarding whether to license a foster

family or approve an adoption. See Ex.1, ¶7.

Faith-based agencies are particularly effective at recruiting

families that otherwise might not choose to foster or adopt. 10 See Ex.2,

¶¶3,6. Michigan recognized that “faith congregations have been

extremely valuable partners” and “have helped us recruit loving foster

and adoptive families by networking in their local communities and with

other faith congregations,” and that faith-based “private agencies . . . and

the local faith congregations that recruit and support foster families are

both vitally important to finding loving homes for vulnerable children.”

Ex.5 (emphasis added). The State also determined that “[e]nsuring that

faith-based child placing agencies can continue to provide adoption and

foster care services will benefit the children and families who receive

publicly funded services.” Id.

The numbers bear this out. St. Vincent recruits homes for children

9Mich. Admin. Code R. §§ 400.12304, 400.12706.

10 National One Church One Child, Inc., About Us,
http://www.nationalococ.org/about.html (noting Illinois partnership with African-
American churches).

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with disabilities at nearly double the average rate across the State.

St. Vincent also recruits more homes for sibling groups than the average

agency, and recruits more homes overall than the average agency. 11

Foster Homes Licensed in Michigan in 2018

12

10
Number of Homes Licensed

0
Total Kids with Disabilities Sibling Groups

St. Vincent Average of All Agencies in Michigan

In the last eighteen months, St. Vincent has recruited more new

foster families total than all of the other private agencies in its tri-county

foster area. Ex.1, ¶3. And in the last four fiscal years, St. Vincent has

served an average of 74 children in its foster care program every year,

11This data comes from Ex.17. Averages are calculated by dividing the totals in these
three categories by 157, which is the combined number of private licensed agencies
and DHHS offices performing these services.
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and through its work over 100 adoptions for foster children were

finalized. Ex.1, ¶3.

B. Foster Care and Adoption Licensing Process

Adoption and foster agencies develop a close working relationship

with the families they recommend. Agencies must perform a home study

on prospective foster or adoptive families, which involves an exhaustive

and deeply-personal review of the family’s eligibility and characteristics.

MDHHS requires agencies to assess the “[s]trengths and weaknesses” of

the parents and the “[s]trengths of the relationship” between the couple,

including “level of satisfaction” and “stability” of the relationship. Ex.1,

¶6 & Attachment A. Agencies are also required to assess the parents’

“roles,” “involvement,” “styles,” “childrearing techniques,” and “values.”

Id. Assessments must also include an evaluation of the “[r]ole of religion

in the family” and the “[r]elationship history” of the parents. Id.

Based on these inquiries, the agency must provide written findings

and a recommendation as to whether the home is suitable for placing

children. Id. ¶7. Michigan (rather than the agency) makes the ultimate

determination about whether to issue a license. Id.

Michigan recognizes that foster agencies will vary, and that not

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every agency is a good fit for every potential foster family. Michigan

therefore encourages families to look for a foster or adoption agency that

is a good fit for that family. MDHHS’s Foster Care Navigator program

helps families find the “agency that’s right for you.” 12 As part of this

process, prospective foster parents receive a worksheet advising them to,

among other things, “make sure you know all of the agencies located in

your area,” “[m]eet with the agency’s workers to find out what services

and support they offer,” “interview a couple agencies until you’re certain

you’ve found the right one,” and then “[c]hoose an agency you are

compatible with.” 13

MDHHS directs prospective adoptive parents to its Michigan’s

Adoption Resource Exchange (MARE) website. MARE advises

prospective parents to find an agency “you feel comfortable sharing

personal and private information” with, as “you will be working closely

with them during the approval process” and “they will be charged with

identifying your future son(s) and/or daughter(s).” Ex.6 at 1. The State

12 Michigan Department of Health and Human Services, Foster Care,

https://www.michigan.gov/mdhhs/0,5885,7-339-73971_7117---,00.html.
13 Department of Human Services, Finding an Agency That’s Right for You,

https://www.michigan.gov/documents/dhs/FosterCareAgencyChecklist_Comm4-
12_381389_7.pdf.

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thus emphasizes that it is crucial applicants “trust [their] instincts” and

“[c]hoose an agency [they] are compatible with.” 14

Along these same lines, the Human Rights Campaign (HRC) has

recognized that a social worker may ask “all kinds of questions about [the

applicant’s] childhood and upbringing, including questions about

puberty, sex and sexuality.” 15 HRC stated that the “homestudy serves as

an evaluation tool that allows you to determine if a prospective resource

parent has that capability to provide a child with a safe and nurturing

home” and should be based on a “thorough evaluation.” 16 A home study

also requires an agency to ask very personal questions regarding an

LGBT individual’s past and sensitive questions about their relationships,

family, and love life. 17

14 Department of Human Services, Foster Care Agency Checklist,

https://www.michigan.gov/documents/dhs/FosterCareAgencyChecklist_Comm4-
12_381389_7.pdf.
15 Perry, J.R., Promising Practices for Serving Transgender & Non-Binary Foster and

Adoptive Parents, Human Rights Campaign Foundation 41-42 (2017),

https://assets2.hrc.org/files/assets/resources/HRC_ACAF_Promising_Practices_Servi
ng_Transgender_Non-Binary_Parents.pdf.
16 Id. at 44.
17 HRC created a list of sample questions for social workers to ask during an LGBT

home study, including personal/intimate questions: “In the past, have you ever been
“outed” by someone? How did you handle it?”; “What has been the attitude of your
extended family to your partner?”; “How have homo/bi/transphobia and/or
heterosexism or cissexism affected your life and how have you dealt with this?”; and
“Where are you in the process of grieving any feelings of loss you may have around

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For both foster care and adoption, MDHHS provides online lists and

interactive maps showing all foster care and adoption agencies across the

state. 18 Applicants can also contact private agencies directly. When this

happens, the agency can either (1) work with the applicants to perform

home study assessments and (potentially) endorse them for State

licensing or (2) refer them to another agency that might better meet their

needs. Ex.1, ¶21. As Steve Yager, executive director of MDHHS’

Children’s Services Agency, explained: “We do not compel agencies to

accept referrals—never have; rather, we create through contracts a vast

array of providers to meet the very diverse needs of the children and

families we serve.” Ex.7.

Private agencies in Michigan have always been able to refer

families to other agencies or MDHHS for a variety of reasons, including:

(1) the family may live further away than the agency would like to drive

for home visits, so they refer them to a closer agency, (2) the agency

already has a waiting list, (3) the family has not been satisfied with the

not having biological children?” Human Rights Campaign Foundation, Sample

LGBTQ Affirming Homestudy Questions & Rationale,
https://assets2.hrc.org/files/assets/resources/HRC_ACAF_LGBTQ_
Affirming_Homestudy_Questions_And_Rationale.pdf.
18 Michigan Adoption Resource Exchange, Map, https://mare.org/Agency-Map

(allowing users to filter by foster or adoptive agencies).

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agency’s services so far, (4) the agency does not specialize in medical or

behavioral health issues, and (5) the family is looking to adopt a child

with particular needs or characteristics that the agency does not have the

ability to support. Ex.1, ¶21.

Some agencies have specialized missions, meaning they often refer

prospective parents elsewhere when they do not fit with the agency’s

specialty. For example, some agencies specialize in placing children with

Native American families, 19 finding homes for African American

children, 20 or serving children with developmental disabilities. 21 And

faith-based agencies have long referred families elsewhere when they

cannot adequately serve a family consistent with their religious beliefs. 22

19 Sault Ste. Marie Tribe of Chippewa Indians, Child Placement,

https://www.saulttribe.com/membership-services/acfs/child-placement (“The Sault
Tribe Binogii Placement Agency is our tribal child placement agency. The agency is
licensed by the state of Michigan . . . The agency services children who are enrolled
or eligible for enrollment as Sault Ste. Marie Tribe of Chippewa Indians members
and Sault Tribe households.”).
20 AdoptUSKids, Minority Specializing Agency and Resource Directory, 4

https://s3.amazonaws.com/becketnewsite/minority-specializing-agency-directory.pdf
(discussing how Homes for Black Children focused on the “adoptive placement of
black children”). Homes for Black Children has since closed for reasons unrelated to
this case.
21 Wayne Center, Foster Parenting, http://www.waynecenter.org/services/foster-care

(the agency is specifically “seeking foster parents with previous experience with
persons who have a developmental disability and/or expertise in related areas”).
22 Historically, some state laws allowed religious organizations to make placements

consistent with their religious beliefs. Ellen Herman, Kinship by Design: A History of
Adoption in the Modern United States 60, 125 (2008). Children were routinely placed

11
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HRC and other LGBTQ-advocacy organizations believe that

agencies should not place children with families that would not be

LGBTQ affirming, including for religious reasons. 23 HRC provides a

“Seal of Recognition” to agencies that are leaders in serving LGBTQ

foster families and children. 24 In Michigan, the following agencies have

received the Seal of Recognition: Fostering Futures, Hands Across the

Water, and Judson Center - Foster Care & Adoption. 25

with families of the same faith whether through self-selection, informal referrals
between agencies, or religion-matching laws. Barbara Melosh, Strangers and Kin:
The American Way of Adoption 77-79 (2002) (describing how religious organizations
referred adoptive parents to each other based on the parent’s religious beliefs).
23 HRC, All Children All Families and Non-Affirming Potential Foster Families,

(Oct. 3, 2018), https://register.gotowebinar.com/register/4180979117481006082 (free

registration required to view) (describing a foster family’s reaction to a child’s
identification as a member of the LGBTQ community as the “all-important
discussion” that if not handled correctly can “harm” the child). HRC also describes
New York City’s approach as a “best practice.” New York City policies state, “[i]f the
parent displays negative attitudes about LGBTQ people, even when deeply rooted in
religious beliefs and cultural values, and the alleged abused and/or maltreatment are
related to the youth’s perceived or actual sexual orientation, gender identity, or
gender expression, the staff must determine whether those attitudes are impacting
the youth’s immediate safety as well as whether those attitudes may put the youth
at risk for future physical or emotional harm.” New York City Government,
Respectfully Asking Sexual Orientation and Gender Identity (SOGI) Questions,
https://www1.nyc.gov/assets/acs/pdf/lgbtq/Respectfully_Asking_SOGI_Questions.pdf
; see also Child Welfare League of America & Lambda Legal, Getting Down to Basics:
Tools to Support LGBTQ Youth in Care, 25-26 (2012),
http://www.lambdalegal.org/sites/default/files/gdtb_2013_complete.pdf.
24 HRC, All Children - All Families: Tiers of Recognition,
https://www.hrc.org/resources/all-children-all-families-tiers-of-recognition.
25 HRC, All Children - All Families Participating Agencies,
https://assets2.hrc.org/files/assets/resources/ACAF_Agency_Database.pdf?_ga=2.176
489573.1586353695.1554989290-1393757968.1551898236.
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C. Placing Children in Loving Homes

For families seeking to provide foster care, or foster to adopt, after

they are licensed, they join that agency’s pool of homes waiting to serve

a child. When a child is removed from his or her home because of abuse

or neglect, MDHHS reaches out to foster agencies until an appropriate

home is found—either a relative of the child or a certified family. Ex.1,

¶15. Under the State’s contracts, MDHHS gives agencies just one hour

to contact their pool of foster homes and determine if any are willing to

foster the child. Id. Agencies thus have to move very quickly down their

list of families, and sometimes the family only has a matter of minutes to

decide. Id. If the agency cannot a family to place the child within that

hour, MDHHS moves on to the next agency. Id.

Often children who are placed in non-permanent foster homes still

need parents to adopt them. Ex.1, ¶15. The MARE website includes

information about all children currently seeking adoption in the State.

Families certified by any of the over 60 private agencies in Michigan are

allowed adopt any child on MARE’s website; they are not limited to

children supervised by the agency that initially recommended the family

for licensing. Ex.1, ¶17. Through this process, and by performing the

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certification process with different agencies, gay couples have been able

to adopt a child in St. Vincent’s care in the past. Id.

D. State and Federal Funding

For the services MDHHS funds related to foster care and adoption, it

does so through a combination of state funds and federal funds, including

Title IV-E and TANF funds through the federal Department of Health

and Human Services. 26 State payments for foster care only begin after

the child is placed with a family. Ex.1, ¶10. At that point, Michigan pays

a per diem to the agency overseeing that placement. Id. Most of the funds

go to the family to defray the costs of providing care, and a portion

remains with the agency to compensate the agency for its support

services. Id. For the majority of 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 after the adoption

is complete. Id.

The home study and recruitment process is nether billed to nor

compensated by MDHHS. Ex.1, ¶11, Ex.8, Ex.9. Instead, St. Vincent uses

26 House Fiscal Agency, Budget Briefing: HHS Human Services,

https://www.house.mi.gov/hfa/PDF/Briefings/HHS_HS_BudgetBriefing_fy18-19.pdf;
Ex.10.
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private funds to cover the costs of home studies and recruiting. Ex.1, ¶13.

These funds come from a cost center that is kept separate from the

funding provided by the State for other child welfare activities. Id. 27

Last fiscal year St. Vincent’s foster and adoption programs

operated at a significant loss based on the state funding alone, and these

programs would not have been able to operate without St. Vincent’s

private subsidies. Ex.1, ¶20.

E. Plaintiffs

1. St. Vincent Catholic Charities. St. Vincent is one of the

oldest and most effective adoption agencies in Michigan. Ex.1, ¶3.

St. Vincent has served children and families for over 70 years, helping

those in crisis find hope and safety. Id. ¶5. As a nonprofit, faith-based

organization, St. Vincent’s mission is “to share the love of Christ by

performing the corporal and spiritual works of mercy.” Id. Today,

St. Vincent provides a range of charitable services, including foster care

27 In some exceptional cases, the State might use a different payment structure
pursuant to a separate, child-specific contract to directly pay for home study services
for foster children being placed with relatives. St. Vincent has never been a party to
such a contract for the provision of home study services for an LGBTQ couple. Ex.1,
¶12. Outside of this exceptional circumstance for placement with relatives, foster
care and adoption home studies are not specifically listed as a “service” under
St. Vincent’s contracts with the State. Ex.8, 9.
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and adoption. Id.

Many of the children St. Vincent serves have experienced physical

or emotional abuse, neglect, or the illness or death of a parent. Ex.1, ¶18.

St. Vincent provides services including individual, family, and group

therapy, monthly home visits, visitation with birth parents and other

relatives, as well as monitoring and referrals to community resources for

additional treatment and support. Id. St. Vincent staff are on call 24

hours a day to address foster families’ concerns. Id.

Adoptive and foster families are not expected to share St. Vincent’s

faith. Id. ¶8. And St. Vincent happily serves both LGBTQ individuals and

children. For example, St. Vincent regularly serves LGBTQ foster

children in both its foster program and its group home, and St. Vincent

welcomes LGBTQ couples to attend a parent support group that

St. Vincent facilitates. Id. However, as a Catholic organization,

St. Vincent cannot provide a written recommendation to the State

endorsing an adult relationship that would conflict with St. Vincent’s

sincere religious beliefs. Id.

If unmarried or LGBTQ couples thus seek St. Vincent’s

endorsement, the agency’s staff, consistent with State law, provide

16
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written information from the State’s website and contact information for

a list of other local agencies that would be able to work with the family.

Id. ¶15. The State has long been aware of St. Vincent’s religious beliefs

and practices, and in 2015 St. Vincent’s executive director testified before

the legislature regarding the need for legal protection for faith-based

adoption agencies. Id. ¶21.

It is illegal to provide adoption or foster care services to children in

Michigan’s child welfare system without a MDHHS contract. Id. ¶19.

Therefore, if the State refuses to contract with St. Vincent, the agency

would be forced to immediately shut down its foster and adoption

ministries. Id.

2. Melissa and Chad Buck. Melissa and Chad Buck

envisioned having a small family with one or two children. Ex.2, ¶2.

However, after years of heartbreaking infertility, the Bucks decided to

adopt. Id. When St. Vincent approached them about a sibling group of

three children who had suffered severe abuse, they were at first hesitant.

Id. But Melissa and Chad felt that after these children had lost all of the

other connections they had, the only thing they had left was each other.

So they agreed to take all three—and they haven’t looked back since. Id.

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St. Vincent later approached Melissa and Chad about adopting a

new infant sibling of their adopted children. The Bucks’ first instinct was

to say no. Id. ¶4. But they couldn’t stop thinking about how much it would

mean for this child to be raised with her siblings. Id. So the Bucks put

aside their fears and opened their home again. Id. In doing this,

St. Vincent was a crucial source of support for the Bucks. Id. The Bucks

also worked with St. Vincent to adopt a baby girl. Id. ¶4.

The Bucks’ five children have a range of special needs. Id. ¶5. These

include autism, a genetic disorder similar to diabetes, severe anxiety,

attachment disorder, and other learning disabilities. Id. Most of the

children also suffered severe trauma and physical abuse before they

entered foster care. Id.

Most of the Bucks’ adoptions involved a heart-wrenching and

difficult process that would not have been possible without the services

St. Vincent workers lovingly provided. Id. ¶6. This included St. Vincent

acting as a trusted intermediary with hostile birth parents, being

available at all hours to provide emotional support, and accompanying

the Bucks to countless medical appointments. Id. The Bucks are not

aware of any other agency that goes to these lengths to support families.

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Id.

It is possible that someday the Bucks will be asked to adopt a new

biological sibling of their children. Id. ¶7. The Bucks are open to this

possibility. Id. But the Bucks cannot envision putting their family

through such a traumatic process again without St. Vincent’s constant

care and support. Id. What is more, without St. Vincent it is unlikely

that the Bucks would be contacted or even made aware of this

possibility—placement decisions are made within an hour and only

St. Vincent has the institutional knowledge and relationships necessary

to ensure that connection is made. Id. ¶7, ¶8.

St. Vincent continues to provide support to the Bucks. Ex.2, ¶9,

¶10. For example, the Bucks attend a monthly parent support group that

St. Vincent helps facilitate. Ex.2, ¶9. This group provides critical

resources that allow the Bucks to care for their special-needs children,

including training and helpful literature. Id. In addition to receiving

support from St. Vincent, the Bucks practice their own faith by assisting

other foster and adoptive parents, helping to lead support groups, and

recruiting new families. Ex.2, ¶10. If St. Vincent were to close its foster

and adoption programs, the Bucks would be hindered in their ability to

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minister to others going through the same experience. Id. And the Bucks

and many other families would be left without support or the ability to

continue taking children into their homes. Id. at ¶9.

3. Shamber Flore. Shamber Flore was removed from her birth

home at the age of five after experiencing years of abuse, poverty, and

neglect, all while being exposed to drugs, gangs, and prostitution. Ex.3,

¶2. But when St. Vincent placed Shamber and her two siblings with their

new adoptive family—the Flores—Shamber was able to begin healing.

Id.

Today, Shamber is a vibrant young woman who loves her family

and mentors others at St. Vincent who have dealt with trauma and

abuse. Id. ¶¶3-4. Shamber wouldn’t have been adopted by the Flore

family if it were not for St. Vincent’s work. Id. ¶3. Shamber’s adoptive

parents, Tam’al and Jerry Flore, had previously tried to adopt with a

state agency and had a very negative experience. Id. Because adoption is

already so difficult, the Flores would not have been able to continue the

adoption process if they had not found a trusted partner and ally in

St. Vincent. Id. Shamber is one of 16 children the Flores have adopted

over the past 14 years. Id.

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If St. Vincent were forced to close its adoption and foster care

ministries, Shamber would lose the opportunity to mentor others as a

St. Vincent volunteer. Id. ¶5. She also believes that if St. Vincent can no

longer recruit families like the Flores, many children who were abused

and alone like her will lose the opportunity to find a loving home. Id.

F. Michigan Protects Faith-Based Agencies

On June 11, 2015, Michigan passed 2015 Public Act Nos. 53, 54, &

55 (the “Michigan Laws”). These three laws were passed to protect the

status quo by “[e]nsuring that faith-based child placing agencies can

continue to provide adoption and foster care services” consistent with

their religious beliefs. 28 Accordingly, Michigan determined that “[p]rivate

child placing agencies, including faith-based child placing agencies, have

the right to free exercise of religion under both the state and federal

constitutions” and that “this right includes the freedom to abstain from

conduct that conflicts with an agency’s sincerely held religious beliefs.” 29

Michigan also confirmed that “a private child placing agency does not

receive public funding with respect to a particular child or particular

28 Mich. Comp. Laws § 722.124e(1)(g).

29 Mich. Comp. Laws § 722.124e(1)(e).

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Case 1:19-cv-00286-RJJ-PJG ECF No. 6 filed 04/16/19 PageID.192 Page 33 of 66

individuals referred by the department unless that agency affirmatively

accepts the referral.” 30

The law also requires faith-based agencies unable to serve a

particular family for a religious reason to provide “information advising

the applicant of the department’s website . . . and a list of adoption or

foster care service providers with contact information.” 31 In practice, this

law simply reaffirmed the practices already in place at faith-based

agencies. If an agency complies with these requirements, as St. Vincent

does, “the state or a local unit of government shall not take an adverse

action against a child placing agency” based on their decision to decline

to provide the requested services. 32

MDHHS was well aware of these agency practices, including

St. Vincent’s practices. In order to comply with the state law, MDHHS

updated its forms and contract documents to provide additional clarity.

Ex.14 at 1. MDHHS staff, some of whom were personally opposed to the

law, nevertheless expressed their views that they could not penalize

agencies, nor decline to contract with agencies, because those agencies

30 Mich. Comp. Laws § 722.124e(1)(h).

31 Mich. Comp. Laws § 722.124e(4).
32 Mich. Comp. Laws § 722.124e(3).

22
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referred same-sex and unmarried couples elsewhere. Ex.15 at 1

(“Certainly, 2015 PA 53 permits a child placing agency to decline to

provide foster care case management or adoption services, but only under

specific circumstances plainly expressed in the act.”). In court filings,

MDHHS expressed its opinion that it needed to continue working with

religious adoption agencies like St. Vincent, and that it was bound to

comply with the state law by permitting those agencies to follow their

religious beliefs. Motion to Dismiss, Dumont v. Gordon, No. 2:17-cv-

13080-PDB-EAS (E.D. Mich., Dec. 15, 2017), ECF No. 16 at 1.

G. The Legal Challenge and the Change of Policy

In September 2017, the ACLU (representing two same-sex couples)

filed a lawsuit against the State, alleging that Michigan, by contracting

with faith-based agencies like St. Vincent, violated the Establishment

and Equal Protection Clauses of the U.S. Constitution. The ACLU

therefore sought to “enjoin[] Defendants, in their official capacities, from

contracting with or providing taxpayer funding to private child placing

agencies that exclude same-sex couples from consideration as foster or

adoptive parents.” Complaint, Dumont v. Gordon, 2:17-cv-13080-PDB-

EAS (E.D. Mich. Sept. 20, 2017), ECF No. 1 ¶B.

23
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The complaint specifically mentioned St. Vincent and included the

allegation that a same-sex couple had approached the agency and was

“immediately . . . refer[ed] to another agency.” Id. ¶43. St. Vincent, the

Bucks, and Shamber Flore intervened to defend the Michigan Laws

alongside the State, which (up until January 2019) had taken the

consistent position that contracting with faith-based agencies was

constitutional.

In November 2018, Michigan elected a new attorney general, Dana

Nessel. During her campaign, Nessel took the position that there is “no

viable defense” for the Michigan Laws and that their “purpose is to

discriminate against people.” 33 She also made clear that if she were

elected, she would not to defend the Michigan Laws, and that she would

hire outside counsel to do so. 34 Instead, shortly after taking office,

Attorney General Nessel fired the outside counsel who had been

defending the laws and, instead of recusing, entered into settlement

discussions with the ACLU. 35

33 Ed White, Dem AG candidate: Adoption law discriminates against gays, Associated

Press (Sept. 27, 2018), https://apnews.com/a1fc021e8e2e4b3b829586
ba56ad9c07
34 Id.
35 Beth LeBlanc, Nessel plans settlement talks in lawsuit targeting same-sex adoption

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On March 22, the State and the ACLU jointly moved to dismiss

their lawsuit based upon a private settlement agreement. That

agreement was attached to a voluntary dismissal motion but not

substantively approved by the court. Dumont v. Gordon, 2:17-cv-13080-

PDB-EAS (E.D. Mich., Mar. 22, 2019), ECF No. 82 (motion), ECF No. 83

(order). The intervenors were not consulted on that agreement and are

not party to that agreement. See id. In their motion to dismiss, the State

and ACLU emphasized that the entire case could be dismissed on the

agreement of the two parties. ECF No. 82 at 3–4. The court immediately

dismissed the case. ECF No. 83 at 1–2. In that agreement, the State took

the position that its contracts prohibited faith-based agencies from

referring same-sex couples elsewhere, despite the state law. It claimed

that “[e]xamples of prohibited discriminatory conduct include . . . turning

away or referring to another contracted CPA an otherwise potentially

qualified LGBTQ individual or same-sex couple that may be a suitable

foster or adoptive family for any child accepted by the CPA for contracted

services.” ECF No. 82 at 4. In other words, when an agency accepts a

refusals, The Detroit News (Jan. 24, 2019, 1:11 PM),

https://www.detroitnews.com/story/news/politics/2019/01/24/nessel-settlement-
discussions-same-sex-adoption-refusals/2667906002/
25
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referral for a single child, the state laws protecting that agency no longer

applies to that agency at all.

The Attorney General’s office released a statement explaining its

about-face. That statement included Nessel’s determination that

St. Vincent had violated its state contracts: “According to MDHHS, on

the dates that [St. Vincent] and Bethany turned away Plaintiffs, each

agency was providing foster care case management services or adoption

services for one or more children for whom the agency had accepted an

MDHHS referral. . . . Consequently, each agency was contractually

prohibited from discriminating against Plaintiffs . . . .” 36 The statement

also claimed that the new policy was required by federal regulations. See

id. The State Defendants thus announced their intention to enforce the

non-discrimination provisions in a manner previously understood to be

prohibited by State law. See id.

H. The Present Lawsuit

As a result of MDHHS’s change in policy, adverse action against

St. Vincent is imminent and impending, including both the non-renewal

36Michigan Government, Summary Statement of Dumont v. Gordon Settlement

Agreement (Mar. 22, 2019), https://www.michigan.gov/documents/ag/03.22.19_
FINAL_Dumont_settlement_summary_650097_7.pdf
26
Case 1:19-cv-00286-RJJ-PJG ECF No. 6 filed 04/16/19 PageID.197 Page 38 of 66

of St. Vincent’s adoption and foster care contracts, as well as suspension

or termination of its current contracts. As a result, Plaintiffs filed this

action on April 15, seeking declaratory and injunctive relief against state

and federal officials. On this same date, Plaintiffs also asked the

defendants to agree to the relief sought in this motion. Neither the state

nor the federal defendants have taken a position, and Plaintiffs now ask

this Court for relief.

STATEMENT OF LAW

Preliminary injunctive relief is necessary to prevent irreparable

harm to the Bucks, Ms. Flore, St. Vincent, and those others St. Vincent

serves, as well as to preserve the status quo. When granting a

preliminary injunction, a court must balance four factors: ““(1) whether

the movant has a strong likelihood of success on the merits; (2) whether

the movant would suffer irreparable injury without the injunction; (3)

whether issuance of the injunction would cause substantial harm to

others; and (4) whether the public interest would be served by issuance

of the injunction.”” City of Pontiac Retired Emps. Ass’n v. Schimmel, 751

F.3d 427, 430 (6th Cir. 2014) (quoting PACCAR Inc. v. TeleScan Techs.,

LLC, 319 F.3d 243, 249 (6th Cir. 2003)). “[T]he degree of likelihood of

27
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success required [for one factor] may depend on the strength of the other

factors.” In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985).

ARGUMENT

A. Plaintiffs have a strong likelihood of success on the merits.

Plaintiffs are likely to succeed on their Free Exercise, Free Speech,

and Religious Freedom Restoration Act claims.

1. Defendants’ policy violates the Free Exercise Clause.

Plaintiffs are likely to prevail on their Free Exercise Claims

(Counts I, II, and III) because the State’s policy is subject to strict

scrutiny but cannot satisfy this “highest level of review.” Susan B.

Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016).

Under the Free Exercise Clause, “public authorities may enforce

neutral and generally applicable rules and may do so even if they burden

faith-based conduct in the process.” Ward v. Polite, 667 F.3d 727, 738 (6th

Cir. 2012). But this “rule comes with an exception.” Id. When the policy

“appears to be neutral and generally applicable on its face, but in practice

is riddled with exemptions or worse is a veiled cover for targeting a belief

or a faith-based practice,” id., the policy “must run the gauntlet of strict

scrutiny.” Id. at 740. A policy satisfies strict scrutiny only if it

28
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“advance[s] interests of the highest order and [is] narrowly tailored in

pursuit of those interests.” Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 546 (1993) (internal quotation marks and citations

omitted).

i. Defendants’ policy is not neutral and generally applicable and is

thus subject to strict scrutiny.

The State’s policy is subject to strict scrutiny for three independent

reasons: (1) the State’s policy against referrals permits individualized

and discretionary exemptions, (2) the State is selectively enforcing its

policy by permitting other agencies to refer families for a variety of

reasons, and (3) the State is explicitly targeting St. Vincent for adverse

government action based on its religious beliefs.

Individualized and discretionary exemptions. Both Supreme

Court and Sixth Circuit precedent make clear that when a law gives the

government discretion to grant case-by-case exemptions based on “the

reasons for the relevant conduct,” strict scrutiny is required. Lukumi, 508

U.S. at 537 (quoting Employment Div., Dept. of Human Resources of Ore.

v. Smith, 494 U.S. 872, 884 (1990)); see also Sherbert v. Verner, 374 U.S.

398 (1963). Such discretionary exemptions are, by definition, the opposite

of a neutral and generally applicable law.

29
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In Ward, a graduate-level counseling student challenged a

university policy that on its face prohibited students from referring

counseling clients to other students. 667 F.3d at 736. Upon closer

inspection, however, it became clear that this rule was actually an “ad

hoc” policy applied at the discretion of the school. This Court thus struck

down the policy, explaining that “[a]t some point, an exception-ridden

policy takes on the appearance and reality of a system of individualized

exemptions, the antithesis of a neutral and generally applicable policy[.]”

Id. at 740; see also Blackhawk v. Pennsylvania, 381 F.3d. 202, 211 (3d

Cir. 2004) (“[T]he waiver mechanism . . . create[d] a regime of

individualized, discretionary exemptions that triggers strict scrutiny.”)

(Alito, J.); Axson-Flynn v. Johnson, 356 F.3d 1277, 1298-99 (10th Cir.

2004) (striking down a university policy that allowed “ad hoc” exemptions

from the university’s curricular requirements).

Here too, contracts between St. Vincent and the State include a clear

discretionary exception: referrals are allowed “upon the written approval

of the County Director, the Children’s Services Agency Director, or the

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Deputy Director.” 37 By granting MDHHS officials the authority to grant

individualized exceptions to their policy, the State has subjected its policy

to strict scrutiny. Ward, 667 F.3d at 740.

Selective Enforcement. In addition to explicitly permitting

discretionary, individualized exceptions, the State’s policy is selectively

enforced. Agency referrals are permitted for numerous secular—but not

religious—reasons.

If a policy is facially neutral and generally applicable, it may still

be subject to strict scrutiny if it is selectively enforced against only some

violators. This Court’s decision in Ward provides a perfect example of

unconstitutional selective enforcement. The University claimed to have

a “no-referral policy,” requiring all graduate student counselors to serve

any client. 667 F.3d at 740. But in practice, there was “no evidence” of

any actual written policy prohibiting referrals, and in fact the University

permitted referrals for numerous secular reasons. Id at 739. It even

permitted referrals for reasons that violated the University’s

antidiscrimination policy (the only written policy it could point to), while

37Ex.12. Almost identical language is in St. Vincent’s current foster care contracts,
permitting the agency to return a case to DHHS “upon the written approval of the
County Director, the Children’s Services Agency Director, or the Deputy Director.”
Ex.9 at 2.
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refusing to grant similar exceptions for religious reasons. See id. “The

policy thus seems to permit referrals for secular—indeed mundane—

reasons, but not for faith-based reasons.” Id.

Judge Sutton explained why this was so problematic: “What poses

a problem is not the adoption of an anti-discrimination policy; it is the

implementation of the policy, permitting secular exemptions but not

religious ones and failing to apply the policy in an even-handed, much

less a faith-neutral, manner to Ward.” Id. Such selective enforcement

required the policy to be subjected to strict scrutiny. Id. See also Tenafly

Eruv Ass’n, Inc. v. Borough of Tenafly, 309 F.3d 144, 168 (3d Cir. 2002)

(applying strict scrutiny because the government’s “selective,

discretionary application” primarily against conduct “motivated by

Orthodox Jewish beliefs” was “suggestive of discriminatory intent”); see

also Alpha Delta Chi-Delta Chapter v. Reed, 648 F.3d 790, 804-05 (9th

Cir. 2011) (holding that strict scrutiny would apply if a policy had been

applied selectively against religious groups).

Here too, Michigan permits agencies to refer families elsewhere for

any number of reasons, and even permits them to violate its non-

discrimination policy. As a MDHHS official explained, “We do not compel

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agencies to accept referrals—never have; rather, we create through

contracts a vast array of providers to meet the very diverse needs of the

children and families we serve.” Ex.7.

The State’s non-discrimination policy prevents agencies from

denying services on the basis of, among other things, sex, sexual

orientation, race, ethnicity and disability. Ex.12. But the State has

chosen to contract with private organizations that specialize in serving

African American children, 38 Native American children, 39 children with

disabilities, 40 and to partner with organizations that serve only LGBTQ

38 Michigan Adoption Resource Exchange, Find a Licensed Agency,

http://mare.org/For-Families/New-to-Adoption/Find-a-Licensed-Agency (listing
Homes for Black Children) (last visited Apr. 16, 2019); AdoptUSKids, Minority
Specializing Agency and Resource Directory, 4
https://s3.amazonaws.com/becketnewsite/minority-specializing-agency-directory.pdf
(discussing how Homes for Black Children focused on the “adoptive placement of
black children”)
39 Sault Ste. Marie Tribe of Chippewa Indians, Child Placement,
https://www.saulttribe.com/membership-services/acfs/child-placement (last visited
Apr. 16, 2019)
40 Wayne Center, Foster Parenting: Wayne Center’s Written Needs Statement,

http://www.waynecenter.org/services/foster-care (last visited Apr. 16, 2019). What is

more, the agency is specifically “seeking foster parents with previous experience with
persons who have a developmental disability and/or expertise in related areas.”

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youth, 41 only girls, 42 and only boys. 43 These exceptions undermine the

State’s claimed interest and show that the policy itself is not actually

neutral and generally applicable—it is instead selectively enforced

against religious groups with beliefs disliked by the State. Strict scrutiny

must apply.

Religious Targeting. As the Supreme Court explained in Lukumi,

“[t]he Free Exercise Clause protects against governmental hostility

which is masked, as well as overt,” and there are “many ways of

demonstrating” that the government has impermissibly targeted a

religious exercise. 508 U.S. at 533-34. Accordingly, all courts must

“meticulously” assess government policies for “subtle departures from

neutrality,” and the “covert suppression of particular religious beliefs” Id.

at 534 (internal citations omitted). Two such departures from neutrality

occurred here.

First, the State’s public statements and the record surrounding its

41 Ruth Ellis Center, Ruth’s House, http://www.ruthelliscenter.org/what-we-do/ruths-

house/ (last visited Apr. 16, 2019). The State has also never indicated that it would
investigate an agency for turning away parents based on religious beliefs the agency
viewed as non-LGBTQ affirming.
42 Guiding Harbor, Girlstown Residential, http://www.guidingharbor.org/
programs/girlstown-residential/ (last visited Apr. 16, 2019).
43 Boys to Men Group Home, LLC, Who We Are,
http://www.boys2mengrouphome.com/about_us.html (last visited Apr. 16, 2019).
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decision to penalize Catholic agencies show hostility by MDHHS

decisionmakers toward St. Vincent’s religious beliefs. Second, the State

has expressly discriminated against St. Vincent by excluding it from

participation in a government program based solely on its sincere

religious beliefs.

Government Hostility. The Supreme Court has made clear that if

“impermissible hostility toward . . . sincere religious beliefs” is the

motivation for a government’s “objection” to religious conduct, that

government action is unconstitutional. Masterpiece Cakeshop Ltd. v.

Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). The Court in

Masterpiece noted that Colorado had “disparage[d] [the baker’s] religion

in at least two distinct ways: by describing it as despicable, and also by

characterizing it as merely rhetorical—something insubstantial and even

insincere.” Id. at 1729. In an opinion joined by seven Justices, the Court

held that “[t]his sentiment is inappropriate for a Commission charged

with the solemn responsibility of fair and neutral enforcement of . . . anti-

discrimination law” Id. Further, the Court noted that government

“cannot act in a manner that passes judgment upon or presupposes the

illegitimacy of religious beliefs and practices.” Id. at 1721-22.

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State officials have acted in a manner that passes judgment upon

and presupposes the illegitimacy of St. Vincent’s religious beliefs and

practices. In September 2017, after the ACLU filed its lawsuit against

the state, a high-ranking MDHHS official took it upon herself to file

formal complaints against St. Vincent and other religious child welfare

agencies based solely upon their religious practices. Ex.16. Defendant

Nessel has repeatedly disparaged religious beliefs and practices like

St. Vincent’s. Prior to her election, she responded to the passage of PA 53

by stating “These types of laws are a victory for the hate mongers.” 44 She

also stated, “If you are a proponent of this type of bill, you honestly have

to concede that you just dislike gay people more than you care about the

needs of foster care kids.” 45 Although she had previously stated that she

would not defend the law she disagreed with, she instead decided to

remain involved in the case and adopt an absurd interpretation of the

law that rendered it meaningless. 46 These actions show that public

44 Fox 2 Detroit, Opponents say adoption bill discriminates against gays and lesbians
(Mar. 4, 2015, 5:34 PM), http://www.fox2detroit.com/news/opponents-say-adoption-
bill-discriminates-against-gays-and-lesbians.
45 Rick Pluta, Faith-based adoption bills headed to House floor, Michigan Radio NPR

(Mar. 4, 2015), https://www.michiganradio.org/post/faith-based-adoption-bills-

headed-house-floor.
46 Julie Williams, AG Nessel to enter lawsuit in same-sex adoption bans, WILX 10

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officials in charge of the decisionmaking on these issues made statements

evincing hostility, just as the Colorado commission did in Masterpiece,

and also backed up those statements with adverse legal action against

religious agencies.

Express Discrimination. Any “policy [which] expressly

discriminates against otherwise eligible recipients by disqualifying them

from a public benefit solely because of their religious character . . . .

imposes a penalty on the free exercise of religion that triggers the most

exacting scrutiny.” Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012, 2021 (2017). In Trinity Lutheran, a religiously affiliated

preschool was denied the “right to participate in a government benefit

program” solely because of its “religious character.” Id. at 2022. The

Court emphasized that “[t]he express discrimination against religious

exercise here is not the denial of a grant, but rather the refusal to allow

the Church—solely because it is a church—to compete with secular

organizations for a grant.” Id. The Court also emphasized that the

Government is also forbidden from “regulat[ing] or outlaw[ing] conduct

(Jan. 25, 2019), https://www.wilx.com/content/news/Michigan-AG-to-enter-lawsuit-

in-same-sex-adoption-bans-504852332.html.
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because it is religiously motivated,” as well as “discriminat[ing] against

‘some or all religious beliefs.’” Id. at 2021 (citation omitted).

St. Vincent has suffered the same express discrimination. The

State has adopted a policy specifically designed to end government

partnerships with religious groups based upon a disfavored religious

belief. Like the church in Trinity Lutheran, these groups would be eligible

to continue and renew their government contracts but for their religious

beliefs.

If anything, this discrimination is more severe than Trinity

Lutheran, since the state previously recognized that “Ensuring that

faith-based child placing agencies can continue to provide adoption and

foster care services will benefit the children and families who receive

publicly funded services,” and that “[t]o the fullest extent permitted by

state and federal law, a child placing agency shall not be required to

provide any services if those services conflict with, or provide any services

under circumstances that conflict with, the child placing agency's

sincerely held religious beliefs. . . .” Mich. Comp. Laws Ann. §

722.124e(1)(g), (2). The State then changed course and adopted a policy

designed to exclude those—and only those—with a particular set of

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religious practices. The State has specifically outlined a set of actions

which are prohibited by the new policy, such as referring “LGBTQ

individual or same-sex couple” to another agency or declining to complete

a home study for an “LGBTQ individual or same-sex couple.” Dumont,

ECF No. 82 at 9.

Its actions demonstrate that the exclusion is not based upon any

consistent application of state or federal law, but on the desire to penalize

and marginalize groups based upon a particular, disfavored religious

belief. 47

ii. Defendants’ policy does not survive strict scrutiny

“Laws subject to strict scrutiny are presumptively unconstitutional

and can only survive if they (1) serve a compelling state interest and (2)

47 The State may point to Teen Ranch v. Udow as a contrary example, but that case
is inapposite. First, it was decided before Trinity Lutheran, and relies on an expansive
reading of Locke v. Davey that was expressly disclaimed in Trinity Lutheran. 137 S.
Ct. at 2025 (“the Court today appropriately construes Locke narrowly”) (Thomas, J.,
concurring in part). Second, the government contractor in Teen Ranch used
government funding to run a program that was alleged to “coerce[] children into
participating in religious activities.” 479 F.3d 403, 406 (6th 2007). No such coercion
occurs here. As the District Court explained, the State could exclude Teen Ranch from
its government contracting program because the State is permitted to choose “not to
fund a distinct category of instruction.” Teen Rach v. Udow, 389 F.Supp.2d 827, 838
(W.D. Mich. 2005) (quoting Locke v. Davey, 540 U.S. 712, 720 (2004)). Here, there is
no allegation that St. Vincent is using government funds to provide religious
instruction, and the challenged activity (referring prospective parents to other
agencies) is not funded by the State.
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are narrowly tailored to achieve that interest.” Susan B. Anthony List v.

Driehaus, 814 F.3d 466, 473 (6th Cir. 2016). This is a demanding inquiry,

as “[a] law that targets religious conduct . . . will survive strict scrutiny

only in rare cases.” Lukumi, 508 U.S. at 546.

Compelling Interest. A compelling interest is an interest “of the

highest order,” of the type that would justify the most serious government

infringements upon constitutional rights. Lukumi, 508 U.S. at 546. When

considering a claim of compelling interest, courts must “look beyond

broadly formulated interests and . . . scrutiniz[e] the asserted harm of

granting specific exemptions to particular religious claimants—in other

words, to look to the marginal interest in enforcing the [new policy] in

these cases.” Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 726–27

(2014) (internal quotations marks, alterations and citation omitted).

Here, the State has no compelling interest in closing down faith-

based agencies; quite the opposite. As the State previously acknowledged,

“[h]aving as many possible qualified adoption and foster parent agencies

in this state is a substantial benefit to the children of this state who are

in need of these placement services.” 48 For that reason, the State worked

48 Mich. Comp. Laws Ann. § 722.124e.

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to create a system in which all families—regardless of sexual orientation

or gender identity—are able to foster or adopt, while still allowing faith-

based agencies to serve those in need consistent with their religious

obligations. This system is in the best interest of children, families, and

“all of the citizens of this state.” Id. MDHHS cannot have a compelling

interest in actions that undermine this goal.

MDHHS has no reason to enforce its policy specifically against

St. Vincent. The State has done nothing to show why St. Vincent must

certify and endorse same-sex relationships even though there are

numerous other nearby agencies that could perform the same service,

and gay couples who receive such certification services elsewhere can still

adopt children in St. Vincent’s care. What is more, closing down faith-

based agencies will not make it any easier for same-sex couples to

adopt—there will instead be fewer agencies available for all couples,

which will likely cause more couples to seek to work with existing

agencies, making it harder for all families to find an agency with

resources to help them.

Least Restrictive Means. The least-restrictive-means standard is

“exceptionally demanding,” and requires the government to “sho[w] that

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it lacks other means of achieving its desired goal without imposing a

substantial burden on the exercise of religion by the objecting part[y].”

Hobby Lobby, 573 U.S. at 728. “[I]f a less restrictive means is available

for the Government to achieve its goals, the Government must use it.”

United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 815 (2000). A

policy flunks this prong if “[the proffered] interests could be achieved by

narrower ordinances that burde[n] [the right] to a far lesser degree.”

Lukumi, 508 U.S. at 546.

Here again, the State legislature has identified a less restrictive

alternative: requiring faith-based agencies to make referrals to other

agencies when they cannot serve a family based on their sincerely held

religious beliefs, thus maximizing both the number of foster parents

available and the number of foster children receiving homes. See Mich.

Comp. Laws Ann. § 722.124e(4). This alternative has been the law of the

land in Michigan for over three years, and there is no indication that

during this period fewer families were certified or children were harmed

as a result.

The evidence actually shows numerous positive changes during this

period, including (1) an increase in the number of children discharged

42
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from foster care to permanency within 24 months year-over-year from

2015 through 2017, (2) a decrease in number of children who reenter

foster care within 12 months of discharge year-over year from 2015

through 2017, and (3) an increase in relative placement year-over-year

from 2015 through 2017. Ex.13.

Nor is there any evidence that the State law has prevented same-sex

couples from becoming foster parents. A less restrictive alternative exists

and has been in place for years. MDHHS cannot argue that enforcing its

anti-discrimination provision against every faith-based agency in the

State is the only way of achieving its allegedly compelling interests.

2. The State’s policy violates the Free Speech Clause.

i. MDHHS’ policy unconstitutionally compels speech by private

actors.

The First Amendment protects speakers from government attempts

to “compel[] them to voice ideas with which they disagree.” Janus v. Am.

Fed’n of State, Cty. & Mun. Emps., 138 S. Ct. 2448, 2464 (2018). It is

“always demeaning” when speakers are “coerced into betraying their

convictions,” and forced “to endorse ideas they find objectionable.” Id.

Courts apply strict scrutiny to government actions that compel speech

and expressive conduct, particularly when sincere religious beliefs are at

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stake. See, e.g., Wooley v. Maynard, 430 U.S. 705, 716 (1977)

(requirement to display state motto on license plates was compelled

speech); Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515

U.S. 557 (1995) (using public accommodations law to force a parade to

include an LGBTQ group was compelled speech).

Strict scrutiny applies here because Michigan is attempting to

compel St. Vincent to engage in speech contrary to its religious beliefs.

The State has threatened to take adverse action against St. Vincent if

St. Vincent is not willing to perform home study assessments, which

include written recommendations evaluating and approving LGBTQ and

unmarried relationships and the suitability of placing children in those

homes. As discussed above, MDHHS requires agencies performing a

home study to assess the “[s]trengths and weaknesses” of the parents and

the “[s]trengths of the relationship” between the couple, including “level

of satisfaction” and “stability” of the relationship. Agencies are also

required to assess the parents’ “roles,” “involvement,” “styles,”

“childrearing techniques,” and “values.” 49 Assessment must also include

49 Michigan Department of Health & Humans Services, Initial Foster/Adoption

Evaluation Form, https://www.michigan.gov/documents/mdhhs/CWL-3130_527684
_7.docx.
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“[r]ole of religion in the family” and the “[r]elationship history” of the

parents. Id. After making those assessments, agencies must provide

written findings and recommendations to the State. See id.

St. Vincent cannot make such written recommendations when they

contradict the Catholic teachings upon which the agency was founded.

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. Rather, on this sensitive and important issue, St. Vincent

stands aside and allows other qualified agencies to make

recommendations on behalf of unmarried or LGBTQ couples. Ex.1, ¶8.

But if St. Vincent will not agree to provide these written evaluations of

same-sex couples, then it cannot continue to serve these children at all.

This is an attempt to “compel[] them to voice ideas with which they

disagree” in violation of the First Amendment. Janus, 138 S. Ct. at 2464.

If St. Vincent refuses to speak the words the State demands, it will be

forced to close its longstanding program. Such actions must face strict

scrutiny.

ii. MDHHS’ policy places an unconstitutional condition on

St. Vincent’s speech.

Michigan’s actions violate the Free Speech Clause for another

45
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reason: governments cannot use a government funding program to

silence unfunded, private speech they may find offensive. Agency for Int’l

Dev. v. AOSI, 570 U.S. 205 (2013). AOSI involved a federal funding

program requiring every group that received funds to have “a policy

explicitly opposing prostitution and sex trafficking.” Id. at 210. The

Supreme Court held that requirement unconstitutional: “[T]he

government may not place a condition on the receipt of a benefit or

subsidy that infringes upon the recipient’s constitutionally protected

rights, even if the government has no obligation to offer the benefit in the

first instance.” Id. at 212. The government cannot “seek to leverage

funding to regulate speech outside the contours of the program itself.” Id.

at 214-15.

As another illustration of an unconstitutional condition, the Court

pointed to FCC v. League of Women Voters of California, 468 U.S. 364

(1984). There, the government provided funding to noncommercial

broadcasters, but as a condition on this funding “prohibited all

editorializing, including with private funds.” AOSI, 570 U.S. at 215-16.

Thus, “even a station receiving only one percent of its budget from the

Federal Government . . . was barred absolutely from all editorializing.”

46
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Id. at 216 (internal quotation marks and citation omitted). This condition

“leveraged the federal funding to regulate the stations’ speech outside the

scope of the program,” and was therefore unconstitutional. Id. The same

is true here.

Michigan is attempting to compel speech that it does not pay for.

Specifically, it is requiring agencies to provide certain written

evaluations and recommendations regarding licenses for foster and

adoptive families. Yet St. Vincent performs these services by using its

own private funds accounted for under a separate cost center. The State

does not list home studies as a “service” under its normal foster care or

adoption contracts with St. Vincent, nor require any specific amount of

home studies to be performed. Ex.1, ¶14. To the contrary, the State has

demonstrated in other contexts that when it wants to specifically contract

for and pay for home study services, it has a mechanism for doing so.

St. Vincent has never entered into such a specific home study contract for

any LGBTQ couples. Ex.1, ¶12.

Home studies are St. Vincent’s private speech and outside the scope

of MDHHS’ foster care and adoption funding programs. Michigan’s

attempts to condition St. Vincent’s foster care and adoption contracts on

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its willingness to provide this speech constitutes an unconstitutional

condition on St. Vincent’s private speech under AOSI and League of

Women Voters.

Indeed, this is an even easier case than AOSI, where the

organizations could forego government funding and “take a different tack

with respect to” the policy question at issue. 570 U.S. at 225 (Scalia, J.,

dissenting). Here, without its contract with the government, St. Vincent

cannot perform foster care or public adoption services at all. As the

Supreme Court has recently recognized, the government may not wield

licenses as a tool for “invidious discrimination of disfavored subjects.”

NIFLA v. Becerra, 138 S. Ct. 2361, 2375 (2018). “[I]t is not forward

thinking to force individuals to ‘be an instrument for fostering public

adherence to an ideological point of view [they] fin[d] un-acceptable.’” Id.

at 2379 (citation omitted) (Kennedy, J. concurring). That is precisely

what has happened here.

3. Injunctive relief is warranted against the Federal

Defendant.

For all the reasons described above, the Plaintiffs’ First Amendment

rights have been violated. Injunctive relief is necessary against both the

state and federal defendants. Attorney General Nessel has stated that

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her unconstitutional actions were necessary in order to comply with

federal regulations. Therefore, the Court should also issue injunctive

relief against Defendant Azar so that HHS may not engage in unlawful

enforcement actions, and so that Michigan cannot use the perceived

threat of federal enforcement as an excuse to violate Plaintiffs’ rights.

Nessel claims that 45 CFR 75.300(c), which prohibits sexual

orientation discrimination in certain federally funded programs, applies

here. 50 But HHS recently took the position that application of the non-

discrimination provisions of 75.300(c) to a religious adoption agency

would violate the federal Religious Freedom Restoration Act (RFRA), 42

U.S.C. 2000bb.51 Under RFRA, actions which substantially burden

religious exercise must face strict scrutiny. 42 U.S.C. 2000bb-2.

According to HHS, “sincere religious exercise would be substantially

burdened by application of the religious nondiscrimination requirement

50 Michigan Government, Summary Statement of Dumont v. Gordon Settlement

Agreement (Mar. 22, 2019), https://www.michigan.gov/documents/ag/03.22.19_
FINAL_Dumont_settlement_summary_650097_7.pdf.
51 Letter from Steven Wagner, HHS Principal Deputy Assistant Secretary,

Administration for Children and Families to Henry McMaster, Governor, South

Carolina (Jan. 23, 2019), https://governor.sc.gov/sites/default/files/Documents/
newsroom/HHS%20Response%20Letter%20to%20McMaster.pdf (“Wagner Letter”).

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of 75.300(c).” 52 Such enforcement would not further a compelling

government interest, and “the interest of allowing potential foster

parents into the SC Foster Care program appears capable of being served

by other providers in the program.” 53 Moreover, the “application of the

regulatory requirement would also cause a significant programmatic

burden for the SC Foster Care Program by impeding the placement of

children into foster care.” 54

The same is true here. For all the reasons listed above, shutting

down St. Vincent’s adoption and foster care program would burden

Plaintiffs’ religious exercise. Application of 75.300(c) to St. Vincent does

not further any compelling interest, particularly given any apparent lack

of similar enforcement against private religious adoption agencies. In

fact, application of this provision to religious child welfare agencies would

impede the State’s interest in ensuring more homes for children. The

State also has an interest in complying with federal law, and federal law

requires that agencies receiving federal funds not discriminate against

52 Id. at 3.
53 Id.
54 Id.

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religious service providers. 55 And, as Michigan itself has recognized,

other less restrictive alternatives are available, such as referrals to other

agencies. See Mich. Comp. Laws Ann. § 722.124e(4). Enforcement of

75.300(c) in the manner threatened here would violate federal law, and

therefore the Court should enjoin any attempt to enforce 75.300(c) to

burden St. Vincent’s religious exercise. 56

B. Plaintiffs will be irreparably harmed absent an injunction.

“The Supreme Court has unequivocally admonished that even

minimal infringement upon First Amendment values constitutes

irreparable injury sufficient to justify injunctive relief.” Newsom v.

Norris, 888 F.2d 371, 378 (6th Cir. 1989) Thus, “to the extent that

[Plaintiff] can establish a substantial likelihood of success on the merits

of its First Amendment claim, it also has established the possibility of

55 See 42 U.S.C. § 604a(c) (“neither the Federal Government nor a State receiving
funds under such programs shall discriminate against an organization which is or
applies to be a contractor to provide assistance, or which accepts certificates,
vouchers, or other forms of disbursement, on the basis that the organization has a
religious character.”).
56 Such enforcement would also violate the First Amendment for all the reasons given

above. Plaintiffs note that the substantial burden test used by RFRA has been used
under the Free Exercise Clause in the past, prior to Employment Division v. Smith,
and there is some indication that the Supreme Court may revisit Smith. See Kennedy
v. Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, J., concurring). Plaintiffs
reserve their right to argue that Employment Division v. Smith should be overturned
and that they should prevail under either test.
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irreparable harm as a result of the deprivation of the claimed [First

Amendment] rights.” Connection Distrib. Co. v. Reno, 154 F.3d 281, 288

(6th Cir. 1998). In addition to the loss of their First Amendment rights,

St. Vincent will be forced to close its foster care and adoption ministries,

and all the families that rely on St. Vincent for crucial support could lose

the opportunity to care for children in need. This would harm the Bucks

and other families who depend on St. Vincent for support, as well as

Shamber Flore, the Bucks, and others who exercise their faith by

volunteering at St. Vincent.

C. An injunction is in the public interest.

“[I]t is always in the public interest to prevent the violation of a

party’s constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor

Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994).

Here, even apart from Plaintiffs’ constitutional claims, the public

interest is best served by ensuring that at-risk children are placed with

loving foster parents and that children seeking adoption can quickly find

permanency. Michigan has already conceded this point in law. See Mich.

Comp. Laws Ann. § 722.124e(1). Closing one of the best foster care and

adoption agencies in the State does not advance that interest.

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D. The balance of the equities favors Plaintiffs.

Finally, harm to Plaintiffs “should the preliminary injunction not

be issued must be weighed against the harm to others from the granting

of the injunction.” United Food & Commercial Workers Union, Local 1099

v. Sw. Ohio Reg’l Transit Auth., 163 F.3d 341, 363 (6th Cir. 1998). This

factor also supports granting an injunction. Compared to the irreparable

harms suffered by Plaintiffs, Defendants or others will not suffer any

harm were this Court to maintain the status quo pending final resolution

of Plaintiffs’ claims. St. Vincent has worked with the State for decades,

and has served those in need through its foster care and adoption

ministries for over 75 years. Gay couples interested in adopting and who

receive their certification through another agency can still adopt children

in St. Vincent’s care at any time. There is no reason that St. Vincent’s

continued operation during the course of this litigation will harm the

State or children in need.

CONCLUSION

For all the foregoing reasons, the Court should enjoin the

Defendants from violating Plaintiffs’ constitutional and statutory rights

and enter a preliminary injunction preserving the status quo.

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Dated: April 16, 2019

Respectfully submitted,
/s/ Lori Windham
Lori Windham
Mark Rienzi*
Nicholas Reaves*
The Becket Fund for Religious Liberty
1200 New Hampshire Ave. NW, Suite
700
Washington, DC 20036
Telephone: (202) 955-0095
Facsimile: (202) 955-0090

William R. Bloomfield (P68515)

Catholic Diocese of Lansing
Lansing, Michigan 48933-1122
(517) 342-2522
wbloomfield@dioceseoflansing.org

Counsel for Plaintiffs

*Admission pending

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CERTIFICATE OF COMPLIANCE

This memorandum complies with the word limit of LR 7.2(B)(i)

because, excluding the parts exempted by LR 7.2(B)(i), it contains 10,748

words. The word count was generated using Microsoft Word 2016.

/s/ Lori Windham

Lori H. Windham
Mark L. Rienzi*
Nicholas R. Reaves*
Counsel for Intervenor-Defendants
The Becket Fund for Religious Liberty
1200 New Hampshire Ave. NW, Suite
700 Washington, DC, 20036
Tel.: (202) 955-0095
Fax: (202) 955-0090
mrienzi@becketlaw.org

Counsel for Plaintiffs

*Admission pending

55