Granting summary judgment to New Hope Family Services, a non-governmental agency located in Syracuse, US District Judge Mae A. D’Agostino ruled on September 6 that the state’s Office of Children and Family Services (OCFS) violated New Hope’s freedom of speech under the First Amendment by giving it an ultimatum either to comply with OCFS’s non-discrimination regulation or close down their adoption services. The regulation, adopted in 2013, prohibits discrimination against applicants for adoption services based, among other grounds, on their marital status, sexual orientation, or gender identity or expression.
Under New York’s adoption law, only agencies authorized by OCFS can provide adoption services, which include screening prospective adoptive parents, taking temporary custody of children in need of adoption or foster care placement, matching children with parents, evaluating the placement, and making recommendations to the court, since adoptions must be approved by a judge to become final.
New Hope was founded by a Christian minister, originally under the name Evangelical Family Service, in 1965, when the state issued a two-year certificate of incorporation, which was made “perpetual” in 1967. From its beginnings, New Hope’s Christian mission focused on placing children with traditional heterosexual married couples, which then were the only adoptions permitted under the state’s adoption law. Over time, the adoption law was amended to allow adoptions by single adults, unmarried couples, and same-sex couples, but New Hope adhered to its policy, offering to refer applicants to other agencies if New Hope’s religious policies precluded providing them with services.
New Hope’s policy became an issue for the OCFS in 2018 when it undertook a review of all adoption agencies that were operating under “perpetual authorization” to determine whether they were operating in compliance with state law. An OCFS agent made a site visit and congratulated New Hope on the quality of its services, but after reviewing New Hope’s policies and procedures manual, the agent called New Hope and said that its referral policy violated the agency’s anti-discrimination regulation. When New Hope indicated that it would adhere to its religious beliefs, OCFS issued an ultimatum: agree to stop discriminating or lose their authorization and have to end their adoption services.
New Hope responded by suing OCFS on December 6, 2018, alleging a violation of its constitutional rights under the First and 14th Amendments, and seeking a preliminary injunction against OCFS while the case was being decided. Judge D’Agostino, who was appointed by President Barack Obama, granted a motion by OCFS to dismiss the case, making the request for a preliminary injunction moot. OCFS appealed to the Second Circuit Court of Appeals, narrowing its claim to free exercise of religion, freedom of speech, and freedom of association, while dropping its 14th Amendment claim. The Court of Appeals panel reversed the dismissal and sent the case back to Judge D’Agostino, with direction to reconsider her refusal to grant a preliminary injunction.
The Second Circuit opinion, issued on July 21, 2020, found that all three First Amendment claims were sufficiently plausible to state a valid claim. The opinion by Circuit Judge Reena Raggi, an appointee of President George W. Bush, gave an extensive analysis that provided a roadmap for Judge D’Agostino to follow in considering the merits of the case. She issued a preliminary injunction on October 5, 2020, based only on the free exercise and free speech claims, finding that New Hope was likely to prevail on those claims, when considered in light of the Second Circuit’s analysis.
After concluding discovery, New Hope and OCFS filed cross-motions for summary judgment. In her September 6 ruling, Judge D’Agostino focused solely on the freedom of speech claim.
New Hope argued this as a “compelled speech” case, contending that OCFS was demanding that New Hope convey a message that unmarried and same-sex couples were suitable adoptive parents and that it was in the best interest of children to be placed with them for adoption. The Second Circuit ruling virtually dictated that Judge D’Agostino accept this argument. OCFS was contending that this was a “government speech” case, arguing that the government delegated its functions respecting adoption to private and public agencies, and that when the agency certified adoptive parents and recommended placements and court approval of adoptions, they were in effect speaking for the government and applying evaluative criteria prescribed by statutes and regulations. The Second Circuit rejected that argument, as did Judge D’Agostino, who was bound to follow the Second Circuit’s direction, even though she had accepted OCFS’s defense when originally dismissing the case. The Second Circuit had noted that the criteria were very general and that authorized agencies were called upon to make independent assessments and exercise judgment, so their conclusions could not be attributed to the government.
In free speech cases, the government’s burden is to show that it has a compelling interest and that its policies are narrowly tailored to avoid abridging free speech more than was necessary to achieve its interest. New Hope argued that its “recusal and referral” policy appropriately achieved the government’s compelling interest in finding homes for children in need of adoption and allowing unmarried couples and same-sex couples to adopt. Although New Hope would not provide services to unmarried couples and same-sex couples, it always offered to refer them to agencies that would take their applications, determine their suitability, match them with children, and facilitate the process through judicial approval.
The court found that there was no evidence that any unmarried or same-sex couple had been unable to adopt due to New Hope’s policy, and that shutting down New Hope’s adoption business would undermine the government’s compelling interest in maximizing placements for adoptive children by removing an agency that had managed thousands of adoptions in its half century of operation.
In light of the Second Circuit’s decision last year, it is unlikely that an appeal by the state would be successful, and even less so in light of the Supreme Court’s decision last year in Fulton v City of Philadelphia, which ruled in favor of Catholic Social Services in its battle with the city’s child welfare agency. The Second Circuit’s decision had gone into some detail in finding evidence of “hostility” to New Hope’s religious beliefs in the language used by OCSF officials. The Second Circuit had also questioned the scope of OCSF’s non-discrimination regulation, which the court considered to have gone beyond the language of the adoption law.
At the time the law was amended to add “same-sex couples” to the list of those who could adopt, religious groups had unsuccessfully asked for an amendment exempting them from having to provide adoption services to same-sex couples, but they were assured by Governor David Paterson that the amendment was “permissive” only — expanding the list of people who could adopt — but not a mandate that would require any agency to change its policies. The Second Circuit commented that the regulation went beyond the statute by applying a non-discrimination policy to religious organizations rather than accommodating them to avoid free exercise and freedom of speech issues.
Judge D’Agostino explained briefly that she was ruling only on the free speech claim because it was unnecessary to decide the religious free exercise claim in order to rule in New Hope’s favor and issue the requested injunction.
Alliance Defending Freedom is representing New Hope. When the case was pending before the Second Circuit, several amicus briefs were filed in each side, including opposing briefs from different groups of religious and non-religious organizations, and a civil rights brief by Lambda Legal, the ACLU, and Americans United for Separation of Church and State.
