Bench Memos

Law & the Courts

Michigan’s Feeble ‘Emergency’ Motion to Stay Preliminary Injunction

On September 26, federal judge Robert J. Jonker entered a preliminary injunction that enables St. Vincent Catholic Charities to continue providing foster and adoptive services to children in Michigan’s child-welfare system. Jonker’s opinion explains that the Michigan legislature enacted legislation in 2015 that allows St. Vincent to decline to decide whether to endorse an unmarried or same-sex couple as foster or adoptive parents and instead to refer such cases to other agencies for decision. But after running an election campaign in which she attacked the 2015 law and condemned St. Vincent as “hate mongers,” new Michigan attorney general Dana Nessel “put St. Vincent in the position of either giving up its belief [about marriage] or giving up its contract with the State.” Jonker concluded that Nessel’s position amounted to “religious targeting” of St. Vincent and could not survive strict scrutiny.

The state of Michigan waited a full two weeks before asking Jonker to stay his injunction pending appeal. And one week after Jonker denied its request, it filed an “emergency motion” with the Sixth Circuit asking it to stay Jonker’s injunction pending appeal.

It would be very strange if the Sixth Circuit were to grant Michigan’s motion.

The fact that Michigan waited two weeks to ask Jonker for a stay belies the notion that it faces any genuine emergency. And nothing in its motion meaningfully suggests otherwise.

The preliminary injunction enables St. Vincent to continue providing the services that it has provided for years, and it preserves (in Jonker’s words) “a carefully balanced and established practice that ensures non-discrimination in child placements while still accommodating traditional Catholic religious beliefs on marriage.” As the Becket Fund argues on behalf of St. Vincent, it is St. Vincent, and “the families and children who rely on St. Vincent,” that would face irreparable harm if the injunction were blocked.

Thus, even without getting to the underlying merits (which I believe also strongly favor the injunction), the Sixth Circuit has compelling reasons to deny Michigan’s motion.

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