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Why Federal Judges Matter

Fantastic ruling from a federal judge in Michigan, restoring religious liberty rights to a Catholic adoption agency wrongly deprived of them by the state. Excerpt:

A Grand Rapids federal judge has halted a new state policy that bans state contracts with foster and adoption agencies that refuse to work with gay couples.

The state’s settlement and comments made by Democratic Attorney General Dana Nessel about the policy prior to taking office show “that the state’s new position targets St. Vincent’s religious beliefs,” U.S. District Judge Robert Jonker wrote in his Thursday opinion.


In his opinion, Jonker said Nessel “is at the very heart of the case” in part because of comments she made on the campaign trail in which she described supporters of the state’s prior policy as “hate mongers” and said she “could not justify using the state’s money” to defend “a law whose only purpose is discriminatory animus.”

Shortly after taking office, Nessel agreed to change state policy so contracts with agencies that refused to work with gay couples would be terminated.

“All of this supports a strong inference that St. Vincent was targeted based on its religious belief, and that it was defendant Nessel who targeted it,” wrote Jonker, an appointee of Republican President George W. Bush.


The case revolves not around whether same-sex couples can be great parents, Jonker wrote, but around “whether St. Vincent may continue to do this work and still profess and promote the traditional Catholic belief that marriage as ordained by God is for one man and one woman.”

Without state contacts, St. Vincent would be forced to close its doors, the agency argued. Further, other adoption agencies are available to gay couples seeking a child.

As of mid-February, St. Vincent and Bethany [two Christian adoption agencies barred by the state regulations] were responsible for nearly 10% of the more than 13,000 children under state supervision.

Got that? Around 90 percent of the state’s adoptions are through agencies that adopt out to same-sex couples. The State of Michigan attempted to destroy the work of these two Christian agencies, out of anti-Christian animus. It wasn’t about giving gay couples the right to adopt; it was about making sure that no adoption agency administered according to Christian principles could operate at all. The state’s Attorney General, Dana Nessel, comes across as an anti-Christian bigot.

From the text of the ruling:

The State Defendants seek dismissal of Defendant Nessel from the case. They contend that she is simply the State’s chief legal counsel, is not responsible for Michigan’s change in policy, and does not belong in the case. The record undercuts the claim. Based on the record to date, Defendant Nessel is at the very heart of the case. She referred to proponents of the 2015 law as hate-mongers” and said the only purpose of the 2015 law was “discriminatory animus.” She described the 2015 law as “indefensible” during her campaign. These statements raise a strong inference of a hostility toward a religious viewpoint. Based on the present record, she was also a pivotal player in the State’s total reversal of position in the Dumont litigation. It was her assessment of risk that led the State to move from defending St. Vincent’s position to abandoning it in the first month of her term – and this despite the 2015 law, the language of the contracts, and well- established practice. All of this supports a strong inference that St. Vincent was targeted based on its religious belief, and that it was Defendant Nessel who targeted it. See Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719, 1729-31 (2018) (detailing disparaging statements of government decision-makers regarding particular religious beliefs and emphasizing the “State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint”). On this record, dismissal of Defendant Nessel from the case is not warranted.

As we have now started a national battle royal over the presidency, it is good to be reminded why it really matters to vote for Republican presidential and Senate candidates. As the country grows more and more anti-Christian — see here for more — federal judges who care about First Amendment guarantees of religious liberty are going to be our last lines of defense from bigoted Democratic officeholders.

UPDATE: Libertarian columnist Megan McArdle pointed out a couple of weeks ago why conservatives fear the illiberal left. Excerpt:

 If you’d told me 10 years ago that same-sex marriage meant evangelical Christian bakers might be legally required to cater gay weddings, I would have rolled my eyes at such hysterical conservative propaganda. PostObergefell v. Hodges, the default left-wing position seems to be that you cannot shun gay weddings and continue to own a bakery, or work as a tech CEO.

Meanwhile, the American Civil Liberties Union went after Catholic hospitals for refusing to provide abortions, and companies have threatened to boycott states that sided with conservatives in the conflict between LGBTQ rights and religious liberty.

So it’s not unreasonable for social conservatives to worry about a more European or Canadian future, in which nurses are told to supervise abortions or stop being nurses, doctors are forced to refer patients for abortion or euthanasia, and religious schools are told to give up either the religion or the school.

You can believe that French-ism is superior to Ahmari-ism in principle and practice, while also recognizing its utter dependence on a good-faith negotiating partner. For the center-right to hammer out a peace the religious right can live with, it needs a counterpart on the left that can stand up to its illiberal flanks and deliver a deal.

Social conservatives may despise Donald Trump, but only a Republican president and a Republican Senate will deliver federal judges who will stand up the the illiberal left. That’s a fact.

UPDATE.2: Here’s how fanatical AG Nessel is. She sees “theocracy” looming in a Trump-administration regulation designed to protect Catholic hospitals from having to perform abortions, sex-change operations, or participate in assisted suicide. In a statement, the AG said:

“This display of contempt for the doctrine of separation between church and state is alarming and terrifying,” said Nessel. “According to our federal government, healthcare providers, from doctors to clerical staff, can decide who deserves medical care ranging from the most routine check-ups to lifesaving medical treatment – all based upon the purported religious, moral, or ethical beliefs of the provider. Healthcare treatment should be dictated by approved medical standards and a patient’s decisions about the type of care he or she wishes to receive, not the personal beliefs of those who hold themselves out as medical professionals. The imposition of this rule catapults our nation further toward America devolving into a virtual theocracy.”

Note that the Trump administration was not outlawing these medical practices. It was only saying that hospitals can’t be forced to do them over conscience objections. That the fanatical Nurse Nessel cannot abide.

Did you see the news earlier this month that an appeals court in California allowed a lawsuit against a Catholic hospital to go forward? A female-to-male transsexual demanded that the hospital give her a hysterectomy as part of her adventure in transitioning. The hospital does not sterilize people except in conditions when it’s “medically necessary.” Despite the fact that the Catholic hospital arranged for the surgery to take place at another hospital within 72 hours, the patient wants to sue the hospital, to rub its nose in its alleged bigotry. And the California judges allowed the suit to go forward.

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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