Nessel settles Michigan same-sex adoption lawsuit

Updated, 4:54 p.m. with comments from Mike Shirkey and Sam Bagenstos

Attorney General Dana Nessel settled Friday with the plaintiffs in a 2017 lawsuit claiming illegal discrimination against a same-sex couple who were denied the opportunity to adopt.

Under the terms of the settlement in Dumont v. Lyon, the Michigan Department of Health and Human Services (DHHS) agrees to “maintain federally required non-discrimination provisions in its foster care and adoption agency contracts,” which will allow the couple in question and all other qualified families to adopt from state-contracted agencies regardless of their sexual orientation.

“Discrimination in the provision of foster care case management and adoption services is illegal, no matter the rationale,” said Nessel in a statement. “Limiting the opportunity for a child to be adopted or fostered by a loving home not only goes against the state’s goal of finding a home for every child; it is a direct violation of the contract every child placing agency enters into with the state.”

In 2017, plaintiffs Kristy and Dana Dumont, along with attorneys from the American Civil Liberties Union (ACLU) sued Nick Lyon, former DHHS director, and Herman McCall, the executive director of the DHHS Children’s Services Agency, after being denied adoption through St. Vincent Catholic Charities and Bethany Christian Services.

Those state-contracted adoption agencies filed a motion to dismiss the lawsuit in December of that same year citing religious liberty and free speech grounds, but the motion was denied by U.S. District Judge Paul Borman.

A 2015 law forbids the state from compelling agencies to provide any services that conflict with their “sincerely held religious beliefs.” But according to the terms of Nessel’s settlement, her office believes that DHHS may still be liable in the ACLU’s lawsuit.

“The reading of the statutes in the settlement says essentially, ‘Look, we’re not going to tell you if you’re an agency and you want to discriminate that you have to work with the state,’” said University of Michigan law professor and former Michigan Supreme Court candidate Sam Bagenstos. “But once you’ve decided you want to work with the state, then you’re not allowed to discriminate.”

Former Attorney General Bill Schuette, a Republican, defended the 2015 law in court while running for governor in 2018. Schuette was term-limited as AG and Nessel ran last year for the post as a Democrat.

She told the Associated Press during the campaign that she would likely not follow Schuette’s position on the suit. Nessel’s opponent in that campaign, former state House Speaker Tom Leonard (R-DeWitt), accused her of attempting to install herself as “Emperor of Lansing.”

State Senate Majority Leader Mike Shirkey (R-Clarklake) denounced the settlement in a press release, saying Nessel “cares little for the Constitution” and that it makes “clear that she sought the office of attorney general to further her own personal political agenda.”

Erin Knott, executive director of Equality Michigan, chalked the settlement up as another win for the LGBTQ community in the aftermath of last year’s state-level Democratic sweep.

“We’ve seen pro-equality policies, or decisions like today’s, coming out of Lansing since not only Attorney General Nessel took office, but with Gov. [Gretchen] Whitmer offering the executive directive [prohibiting discrimination against LGBTQ people in state employment],” Knott said.

“This is really good news for our community, as it relates to these two women. Now if only we could call on folks in the Legislature to advance pro-equality measures, it would be an even better day in Michigan.”

That Legislature almost threw a major wrench into such actions from the AG’s office with last year’s House Bill 6553, passed by both chambers during the Lame Duck session before a veto from then-Gov. Rick Snyder.

The bill would have allowed the Legislature to intervene in any case that involved legislative matters, such as this one, without the approval of said case’s presiding judge. Legal experts, including Harvard law professor Lawrence Tribe, spoke out against the measure, describing it as part of a trend in Republican overreach after a disappointing 2018 election result for the party nationwide.

Adoption agencies that do not contract with the state for referrals will still be able to refuse adoption to LGBTQ individuals and couples. Sam Inglot of Progress Michigan issued a statement urging further action, describing such decisions as “wrong” and saying, “We still have work to do as a state.”

Those on the defendants’ side of the lawsuit may be planning further legal work of their own.

“It wouldn’t surprise me if you saw one of these agencies file to try to challenge [Nessel’s] interpretation [of the 2015 state law],” Bagenstos said.

“This is a settlement between plaintiffs and the state; it quite explicitly does not include the agencies that wanted to discriminate. So they might well want to file a challenge to this, and the courts would have the opportunity to hear that.”

Becket Law, a nonprofit that describes its mission as “protect[ing] the free expression of all faiths,” represented the defendants in Dumont v. Lyon and accused Nessel and the ACLU on Twitter of “trying to stop the state from working with faith-based adoption agencies,” claiming that “1,000s of children will be kept from finding the loving homes they deserve.”

In the wake of today’s settlement, at least one of those children will find a home with the Dumonts.

“We are hopeful that this will mean more families for children, especially those who have been waiting years for a family to adopt them,” the couple said in a press release.

“And we can’t wait to welcome one of those children into our family.”