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2nd Circuit Court of Appeals Revives Religious Adoption Agency’s Challenge to New York Anti-Discrimination Rule

Posted on: July 22nd, 2020 by Art Leonard No Comments

The U.S. Court of Appeals for the 2nd Circuit, based in New York, has revived a Syracuse religious adoption agency’s constitutional challenge to the New York Office of Children and Family Service (OCFS) regulation prohibiting discrimination because of marital status or sexual orientation by adoption agencies. New Hope insists, based on its religious principles, that it cannot provide adoption services to unmarried people or same-sex couples.  OCFS threatened to terminate New Hope’s status as an approved agency if it does not comply.  New Hope Family Services, Inc. v. Poole, 2020 WL 4118201, 2020 U.S. App. LEXIS 22630 (2nd Cir., July 21, 2020).

New Hope Family Services has been an approved adoption service provider for more than fifty years and estimates that it has placed more than 1,000 children for adoption.  Although it is not affiliated with any church or formal religious movement, it identifies as a Christian agency, requires its employees to subscribe to articles of faith, and will not, consistent with its belief that children are best served in a “Biblical” family constructed of a husband, wife and child, screen potential adoptive parents who do not conform with this model.  New Hope alleges that if single people or same-sex couples seek its services, it would refer them to another agency that is willing to provide the services.  Thus, it claims, nobody is ultimately denied the ability to adopt a child based on their marital status or sexual orientation, and it has not received inquiries from same-sex couples seeking its services.

Under New York law, only agencies “authorized” by the state may provide adoption services, which include evaluating potential adoptive parents, matching them with children needing placements, supervising placements, and preparing reports to the court that will ultimately decide whether to approve an adoption.  State law and regulations set out detailed criteria concerning who may adopt a child and the factors that an approved agency, such as New Hope, are supposed to consider in determining whether it would be in the best interest of a child to be adopted by a particular person or couple.

Although adoption was traditionally limited to married couples, over the years the legislature amended the law to widen the scope of individuals who are permitted to adopt. In 2010, the adoption law was amended to state that an “adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person.”  The amendment was intended to reflect court decisions that had allowed the same-sex partners of parents to adopt their children, some going the next step by allowing same-sex couples to adopt.  As of 2010, same-sex couples could not legally marry in New York, but the courts had begun to recognize same-sex marriages performed in other jurisdictions, including Canada and several states. When Governor David Paterson signed the bill into law, he stated that the law would not require any agency to change its current practices, since it was “permissive,” not mandatory.

The adoption statute authorizes OCFS to adopt regulations to implement the law.  In 2011, after the new statutory provision went into effect, OCFS adopted a regulation providing that an applicant to adopt children could not be rejected “solely on the basis of homosexuality.” OCFS sent an informational letter to the adoption agencies stating that the purpose of the regulation “is to prohibit discrimination based on sexual orientation in the adoption study assessment process,” and that “OCFS cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.”

Two years later, OCFS issued a new regulation which requires authorized adoption agencies to “prohibit discrimination and harassment against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability, and to take reasonable steps to prevent such discrimination or harassment by staff and volunteers, promptly investigate incidents of discrimination and harassment, and take reasonable and appropriate corrective or disciplinary action when such incidents occur.”

In 2018, OCFS undertook an audit of every adoption agency’s policies and practices.  New Hope passed the on-site audit with ease, but when their written policies were reviewed, OCFS took note of the policy of declining services to single people and same-sex couples, and advised OCFS that it needed to change its policy to comply with the non-discrimination policy.  New Hope dug in its heels, and eventually OCFS warned New Hope that it would have to close its operation if it would not comply with the non-discrimination policy.  Significantly, this did not occur as a result of anybody having been turned away or filed a complaint.

New Hope filed this lawsuit in the U.S. District Court for the Northern District of New York, claiming a violation of its constitutional rights, but the district court dismissed the lawsuit and denied New Hope’s request for a preliminary injunction to stop the state from ending their authorized status while the case was pending.  The judge, Mae D’Agostino, found that under the U.S. Supreme Court’s 1990 decision, Employment Division v. Smith, 494 U.S. 872, New Hope was not entitled to claim an exemption from compliance with the law based on its religious beliefs.  Justice Scalia’s opinion for the Court in that case said that there is no free exercise of religion exemption from complying with state laws of “general application” that are “neutral” regarding religion.

New Hope appealed to the 2nd Circuit, which reversed the district court on July 21.  The three-judge panel found, in an opinion by Circuit Judge Reena Raggi, that the complaint filed for New Hope by Alliance Defending Freedom contained sufficient factual allegations to at least raise an issue of whether New Hope had been targeted due to hostility by OCFS to its religious beliefs.  The court’s opinion notes that the adoption statute itself does not ban discrimination based on sexual orientation, but rather broadens the previous categories of individuals who are legally authorized to adopt children, leaving some question whether OCFS could adopt a non-discrimination requirement through a regulation.  Furthermore, the court noted Governor Paterson’s statement when the law was amended to allow unmarried couples to adopt that it was not intended to require any agencies to change their policies, because the statute was merely “permissive.”  The court also noted in quotations from the correspondence between OCFS and New Hope various statements that could be construed as hostile to or disapproving of New Hope’s religious beliefs.

In light of these and other factors, the court concluded that it was “premature” for the district court to dismiss the case outright.  In deciding a motion to dismiss, the trial court is supposed to treat as hypothetically true all the facts alleged by the plaintiff and to decide whether those facts, if proven, might provide the basis for a valid legal claim.  And, since the court found dismissal to be premature, it directed the trial court to reinstate the lawsuit on the active docket and to analyze whether New Hope is entitled to a preliminary injunction to allow it to carry on its operations while the case is being litigated.

The court was careful to make clear that was not deciding the merits of the case.  The opinion provides a detailed and searching discussion of the concepts of “neutral state laws” (meaning “neutral” regarding religion) and laws that are “generally applicable.”  The court noted that the Supreme Court has ruled that the rule of Employment Division v. Smith does not necessarily apply to situations where a law that looks neutral and generally applicable on its face is shown to have been motivated by government animus towards a particular group or, in the case of religion, animus towards particular religious practices.  The court also took note of the Supreme Court’s 2018 decision in Masterpiece Cakeshop, 138 S. Ct. 1719, in which it reversed a state court ruling that Masterpiece violated a public accommodations law by refusing to make a custom wedding cake for a same-sex couple.  The reversal was based on the Court’s conclusion that the state’s civil rights agency had displayed hostility to the baker’s religious views in the administrative hearing process.

Government discrimination against religious organizations was also targeted by the Supreme Court this Term when it held that the state of Montana’s scholarship program for students attending private schools could not exclude religious schools from participating, since this would be “discrimination” against religion.

The court also rejected the trial court’s analysis of New Hope’s argument that requiring it to evaluate and endorse same-sex couples as adoptive parents was a form of compelled speech.  Judge D’Agostino found that this would be “government speech,” because by authorizing New Hope to evaluate applicants the government was delegating to New Hope a governmental function.  Judge Raggi’s opinion questioned this conclusion, pointing out that New Hope was not a government contractor and was not paid by the government to undertake this activity.  Rather, it is an independent agency supported by fees for its services and charitable contributions.  New Hope has always avoided taking government money because it wanted to preserve its freedom to operate consistently with its religious beliefs.

The court also took note of the U.S. Supreme Court’s decision to review the 3rd Circuit Court of Appeals’ decision in Fulton v. City of Philadelphia, a case similar in many respects to this case.  The 3rd Circuit held that the City did not violate Catholic Social Services’ constitutional rights when it dropped that agency from participating in the City’s foster care system because of its refusal to deal with same-sex couples.  That case also relied on Employment Division v. Smith.  Judge Raggi observed that at least four justices of the Supreme Court have expressed the view in various dissenting or concurring opinions that the Court should “revisit” the holding of Smith, which was a controversial case when it was decided and which provoked Congress into passing the Religious Freedom Restoration Act, which was then imitated by many states (although not New York).  If the Supreme Court reverses the Fulton decision or modifies Employment Division v. Smith, the rules governing the New Hope case will be changed.  Judge Raggi also pointed out key distinctions between the two cases.  In Fulton, the Catholic agency was a city contractor and relied heavily on compensation from the city to perform its services, while New Hope, as noted above, is an independent operator that is “authorized” by the state to perform services but is not a contractor or funding recipient.

The case now goes back to District Judge D’Agostino to consider New Hope’s request for a preliminary injunction and to conduct discovery which may culminate in a summary judgment or a trial on the merits if the parties don’t settle the case first through some compromise.  In light the pace at which such proceedings take place, it is likely that the Supreme Court will have ruled in Fulton v. City of Philadelphia before Judge D’Agostino has to render a final decision on the merits in New Hope’s case.

Judge Raggi was appointed to the Court of Appeals by President George W. Bush.  She previously served on the District Court, having been appointed by President Ronald Reagan.

Federal Court Rejects Christian Agency’s Claimed Constitutional Right to Discriminate Against Same-Sex Couples Seeking to Adopt Children

Posted on: May 27th, 2019 by Art Leonard No Comments

U.S. District Judge Mae A. D’Agostino has rejected a Christian social welfare agency’s bid to be exempted from complying with non-discrimination regulations promulgated by the New York Office of Children and Family Services (OCFS).  Ruling on May 16 in New Hope Family Services, Inc. v. Poole, 2019 WL 2138355, 2019 U.S. Dist. LEXIS 2138355 (N.D.N.Y.), the court rejected a variety of constitutional arguments advances by the plaintiff in support of its claim of a constitutional right to discriminate against same-sex couples seeking to adopt children.

The plaintiff, New Hope Family Services, is an “authorized agency” with the authority to “place out or to board out children” and “receive children for purposes of adoption” under the New York Social Services Law and regulations adopted by the Office of Children and Family Services.  Under the law, the agency must “submit and consent to the approval, visitation, inspection and supervision” of OCFS, which must approve the agency’s certificate of incorporation.  Pastor Clinton H. Tasker founded New Hope in 1958 “as a Christian ministry to care for and find adoptive homes for children whose birth parents could not care for them,” wrote Judge D’Agostino.  Because of its religion beliefs, New Hope “will not recommend or place children with unmarried couples or same sex couples as adoptive parents,” it states in its complaint.  New Hope’s “special circumstances” policy states: “If the person inquiring to adopt is single . . . the Executive Director will talk with them to discern if they are truly single or if they are living together without benefit of marriage… because New Hope is a Christian Ministry it will not place children with those who are living together without the benefit of marriage.  If the person inquiring to adopt is in a marriage with a same sex partners . . . the Executive Director will explain that because New Hope is a Christian Ministry, we do not place children with same sex couples.”

Prior to 2010, New York’s Domestic Relations Law provided that authorized agencies could place children for adoption only with “an adult unmarried person or an adult husband and his adult wife.”  In September 2010, New York amended the law to allow placements with “an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together.”  After New York adopted its Marriage Equality law in 2011, OCFS issued a letter on July 11, 2011, stating that the intent of its regulations “is to prohibit discrimination based on sexual orientation in the adopting study assessment process.  In addition, OFCS cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.”  In 2013, the adoption regulations were amended to prohibit outright discrimination “against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability.”  OCFS followed this up with an “informational letter” in 2016, advising authorized agencies to formalize their non-discrimination policies consistent with the regulations.

In its complaint challenging these developments, New Hope (represented by Alliance Defending Freedom, the anti-LGBT religious litigation group) claims, according to Judge D’Agostino, that the agency promulgated these regulations “purporting to require adoption providers to place children with unmarried and same-sex couples in complete disregard for the law, the scope of OFCS’s authority, and the rights of adoption providers.”

The lawsuit stemmed from action by OFCS, contacting New Hope early in 2018 to inform the agency that “under a new policy implemented in 2018, OFCS would be conducting comprehensive on-site reviews of each private provider’s procedures,” and following up in mid-July with an email to schedule New Hope’s program review, including a list of things that had to be reviewed, including New Hope’s “policies and procedures.”  OFCS requested a copy of New Hope’s formal policies and procedures as part of this review.  Later in 2018, after reading New Hope’s procedures, OFCS Executive Director Suzanne Colligan called New Hope, noting the “special circumstances” provision, and informing new Hope that it would “have to comply” with the regulations “by placing children with unmarried couples and same-sex couples,” and that if New Hope did not comply, it would be “choosing to close.”  New Hope ultimately refused to comply after a series of email and letter exchanges with OFCS.

New Hope filed its complaint on December 6, 2018, claiming 1st and 14th amendment protection for its policies, claiming that OFCS’s interpretation of state law “targets, show hostility toward, and discriminates against New Hope because of its religious beliefs and practices” and also violates New Hope’s freedom of speech.  The complaint also alleged an equal protection violation, and claimed that the state was placing an “unconstitutional condition” by requiring New Hope to comply with the non-discrimination policy in order to remain an “authorized agency.”  The complaint sought preliminary injunctive relief against enforcement of the policy.

New Hope tried to escape the precedent of Employment Division v. Smith, 494 U.S. 872 (1990), which holds that there is no free exercise exemption from complying with neutral state laws of general application, by relying on a statement in Hosannah-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012), in which the Supreme Court held that the 1st Amendment protects religious institutions from government interference in their selection of ministerial personnel.  New Hope argued that “cases teach that even a genuinely ‘neutral law of general applicability’ cannot be applied when to do so would interfere in historically respected areas of religious autonomy.”  New Hope claimed that the state regulation was adopted “for the purpose of targeting faith-based adoption ministries” and thus was “not neutral or generally applicable as applied.”

Judge D’Agostino was not convinced, referring to a decision by the U.S. District Court in Philadelphia rejecting similar arguments by Catholic Social Services in that city in Fulton v. City of Philadelphia, 320 F. Supp. 3d 661 (E.D. Pa. 2019), which has been affirmed by the 3rd Circuit Court of Appeals, 922 F.3d 140 (April 22, 2019).  The judge observed that the courts in the Philadelphia case had found similar requirements under a Philadelphia anti-discrimination ordinance to be “facially neutral and generally applicable” and “rationally related to a number of legitimate government objectives.”  And, she noted, “In affirming the district court, the Third Circuit rejected CSS’s claims that the application of the anti-discrimination clause is impermissible under Smith and its progeny.”  Judge D’Agostino found the 3rd Circuit’s ruling persuasive in this case.

“On its face,” wrote the judge, “18 N.Y.C.R.R. sec. 421.3(d) is generally applicable and it is plainly not the object of the regulation to interfere with New Hope’s, or any other agency’s, exercise of religion.”  She found that the requirement to comply is imposed on all authorized agencies, “regardless of any religious affiliation,” and that it is neutral.  “Nothing before the Court supports the conclusion that section 421.3(d) was drafted or enacted with the object ‘to infringe upon or restrict practices because of their religious motivation.”  The adoption of the requirement was a natural follow-up to the legislature’s passage of a law that codified “the right to adopt by unmarried adult couples and married adult couples regardless of sexual orientation or gender identity.”  The purpose was to prohibit discrimination.

The court also rejected the argument that the regulations are not neutral because they allow agencies to take account of a variety of factors in evaluating proposed adoptive parents, including “the age of the child and of the adoptive parents, the cultural, ethnic, or racial background of the child and the capacity of the adoptive parent to meet the needs of the child with such background as one of a number of factors used to determine best interests.”  As the 3rd Circuit found in Fulton, there is a significant difference between a policy of outright refusal to place children with unmarried or same-sex couples and the application of an evaluative process focusing on the characteristics described in the regulations.  “Further,” wrote D’Agostino, “nothing in the record suggests that OCFS has knowingly permitted any other authorized agency to discriminate against members of a protected class.”

New Hope also argued that the enforcement of the regulation was not neutral, instead evincing hostility against religious agencies such as itself.  Rejecting this argument, the judge wrote, “The fact that New Hope’s conduct springs from sincerely held and strongly felt religious beliefs does not imply that OCFS’s decision to regulate that conduct springs from antipathy to those beliefs,” quoting key language from the 3rd Circuit: “If all comment and action on religiously motivated conduct by those enforcing neutral, generally applicable laws against discrimination is construed as ill will against religious belief itself, then Smith is a dead letter, and the nation’s civil rights laws might be as well.”

The court also rejected New Hope’s argument that the regulation violates the Free Speech clause of the 1st Amendment “insofar as it forces New Hope to change the content of its message” and to affirmatively recommend same-sex couples to be adoptive parents, in effect imposing an “unconstitutional condition” on New Hope.  The essence of the analysis is that designating New Hope an “authorized agency” for this purpose is delegating a governmental function to New Hope, and any speech in which New Hope engages to carry out that function is essentially governmental speech, not New Hope’s private speech as a religious entity.  “Therefore,” she wrote, “OCFS is permitted to ‘take legitimate and appropriate steps to ensure that its message,’ that adoption and foster care services are provided to all New Yorkers consistent with anti-discrimination policy set forth” in the regulation, “was and is ‘neither garbled nor distorted by New Hope.’”  She concludes that “OCFS is not prohibiting New Hope’s ongoing ministry in any way or compelling it to change the message it wishes to convey.  New Hope is not being forced to state that it approves of non-married or same sex couples.  Rather, the only statement being made by approving such couples as adoptive parents is that they satisfy the criteria set forth by the state, without regard to any views as to the marital status or sexual orientation of the couple.”

The court similarly dismissed New Hope’s claim that applying the regulation violated its right of expressive association, rejecting New Hope’s argument that this case is controlled by the Supreme Court’s decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), where the court found that the BSA had a 1st Amendment right to dismiss an out gay man from the position of Assistant Scoutmaster, based on the determination by 5 members of the Court that requiring the BSA to allow James Dale to serve would be a form of compelled endorsement of homosexuality.  The Court deemed the BSA an expressive association that had a right to determine its organizational message.  By contrast, found Judge D’Agostino, “New Hope has not alleged facts demonstrating a similar harm that providing adoption services to unmarried or same sex couples would cause to their organization.  New Hope is not being required to hire employees that do not share their same religious values,” she wrote.  “They are not prohibited in any way from continuing to voice their religious ideals.”  And even if the regulation worked “a significant impairment on New Hope’s association rights,” she continued, “the state’s compelling interest in prohibition the discrimination at issue here far exceeds any harm to New Hope’s expressive association.”

The court also found no merit to New Hope’s Equal Protection claim based on a spurious charge of selective enforcement, finding no indication that OCFS was allowing other, non-religious agencies to discriminate while cracking down on New Hope.  As to the “unconstitutional conditions” cause of action, the judge wrote that the court “views New Hope’s unconstitutional conditions claim as a mere repackaging of its various First Amendment claims and, therefore, the Court similarly repackages its resolution of those claims.”

Consequently, the court denied the motion for preliminary injunction, and granted OCFS’s motion to dismiss the case.  ADF will undoubtedly seek to appeal this ruling to the 2nd Circuit.