A Case That Is Being Portrayed as a Win for Religious Freedom Is Actually a Road Map for Our Perpetual Defeat

There is a major struggle going on right now over the fate of religious freedom in this country. It is safe to say that the left is actively hostile to religion once it leaves the doors of the church (many are hostile even before then but I’ll give the entire mob of them the benefit of the doubt) and they have adopted FDR’s obscene Freedom of Worship as their catchphrase. The lay of the land isn’t much more favorable elsewhere. Many people who style themselves as conservative are actually worshippers at the idol or “tolerance” and are perfectly willing to see religious freedom made subservient to that goal. Some are even claiming that religion is on par with homosexual marriage and telling us that is a good thing.

On Thursday, US District Court Judge Robert Jonker (a Bush appointee) ruled that Catholic Charities could not be barred from acting as an adoption agency in Michigan because it refused to place children in homes of homosexual couples. The decision did not look at the suitability of homosexuals to be adoptive parents, but rather on the process that was used to exclude Catholic Charities and the actions of rabidly anti-Christian Michigan Attorney General Dana Nessel who has made a career out of castigating orthodox Christians as hatemongers. Here’s how she described the Trump administration policy which shields Catholic hospitals from performing abortions, assisted suicides, and genital mutilations…I’m sorry, I meant “gender reassignment surgery.”

“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.”

The state social services agency tried to have any mention of Nessel removed from the case on the grounds that they, not the state attorney general, made the decision to bar Catholic Charities. Judge Jonker called bullsh** on this ploy. This is from Judge Jonker’s 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.

In other words, just like in the Masterpiece Cakeshop ruling, the case was decided on the overt record of animus both the Colorado Civil Rights Commission and the Michigan attorney general had shown towards religious people and organizations.

This is how National Review’s David French describes the ruling:

The last point is key. As stated above, there was no evidence that St. Vincent prevented any qualified couple from adopting. In fact, if the state forced St. Vincent’s to choose between upholding the teachings of its faith or maintaining its contractual relationship with the state, then it risked shrinking the available foster or adoption options in the state of Michigan. The state demonstrated that it was more interested in taking punitive action against people of faith than it was in maintaining broader access to foster and adoption services for its most vulnerable citizens.

The judge rightly called the state’s actions a “targeted attack on a sincerely held religious belief.” Once again, Masterpiece Cakeshop pays religious-liberty dividends. Once again, a court declares — in no uncertain terms — that in the conflict between private faith and public bigotry, religious liberty will prevail.

This is the kind of whistling past the graveyard that drives me nuts. This decision was not a victory for religious liberty, rather it simply ratified a roadmap for zealous anti-Christians to stamp out religious liberty. A better ruling would have hammered home that an organization cannot be forced from the public square because of its beliefs. What this ruling did was put the bigots on notice that they have to find other reasons, that they have to keep their meetings private with no minutes taken, that they can’t actively appeal to anti-religious bias.

Rod Dreher covers the story in a story called Why Federal Judges Matter. They do. It would have been horrible to lose a ruling such as this. But timid, half-measures judges don’t make things better. They just delay the reckoning.

In short, rulings like this simply point people like Nessel to how white politicians in the South after Brown vs. Board of Education worked to keep black Americans from voting, from holding jobs in certain professions, and to keep schools segregated despite the Supreme Court rulings. We’re not done here. Not by a long damned shot. We’ll have to fight this battle again and again and eventually we’ll face people who aren’t idiots and judge who isn’t sympathetic.

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