New Hope Family Services, a Christian adoption agency licensed by New York State, has won a preliminary injunction to block the state’s Office of Children and Family Services (OCFS) from closing the agency because of its refusal to provide services to married same-sex couples.
US District Judge Mae A. D’Agostino issued the injunction on October 5 after being directed by the Second Circuit Court of Appeals to reconsider her prior denial of a preliminary injunction at the same time that she dismissed New Hope’s lawsuit. The Second Circuit panel reversed her dismissal.
Under New York law, only an “authorized agency” can evaluate potential adoptive parents, match them with children needing adoption, and make recommendations to a court that ultimately grants the adoption.
New Hope Family Services wins temporary injunction as it pleads religious freedom discrimination
New Hope, originally named Evangelical Family Service, was formed in 1965 by a Syracuse-based Christian minister. In the 1960s, New York’s adoption statute limited the right to adopt children to “an adult unmarried person or an adult husband and his adult wife.”
In 2010, the legislature — complying with the state’s highest court practice of recognizing second-parent adoptions for same-sex couples since the 1990s — amended the law to allow authorized agencies to place children for adoption with “an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together.”
OCFS, in turn, adopted a non-discrimination regulation and informed all authorized agencies that they could not discriminate against same-sex couples or unmarried couples. After New York’s Marriage Equality Law went into effect in 2011, of course, married same-sex couples were automatically covered by the amended statute, and authorized agencies were so advised. In 2015, the US Supreme Court found that same-sex couples have a constitutional right to marry, and their marriages are entitled to the same treatment under state law as all other marriages.
New Hope, however, retained its longstanding policy of limiting its services to married different-sex couples or unmarried adults not living in an intimate relationship with another adult. For any other couple who approached New Hope, it had a policy of “recusal and referral” to a different agency.
OCFS never received any complaints about New Hope denying services, but a 2018 audit of authorized adoption agencies brought its discriminatory policy to light. The conversations that ensued between OCFS and New Hope included some statements that the agency seized upon as showing “hostility” to its religious beliefs — and the Second Circuit panel felt that claim was at least arguable. When it was given a written ultimatum in late 2018, New Hope filed this lawsuit, represented by Alliance Defending Freedom, a leading anti-LGBTQ religious litigation group.
New Hope argued that OCFS’ regulation went beyond the statute, which it said was permissive in allowing agencies to serve same-sex couples as well as unmarried couples. The lawsuit noted that at the time it was adopted, Governor David Paterson stated it would not require any agencies to change their polices.
New Hope also asserted that requiring it to serve same-sex couples contrary to its religious beliefs violates its First Amendment rights of free speech and free exercise of religion. Citing the US Supreme Court’s 2018 Masterpiece Cakeshop decision, New Hope also claimed that OCFS had expressed hostility to the agency’s religious beliefs. It sought a preliminary injunction to block OCFS from taking action against it while the lawsuit was pending.
The state moved to dismiss the lawsuit.
Judge D’Agostino granted the state’s motion, finding that the regulation was within the scope of the statute and did not violate New Hope’s constitutional rights.
New Hope appealed to the Second Circuit, which reversed D’Agostino’s dismissal in July and sent the case back to her. The three-judge Circuit panel concluded that New Hope’s allegations were sufficient to put into play its constitutional claims as well as its claims about the limited scope of the adoption statute as permissive rather than mandatory. The panel, which also mentioned the “hostility” issue, retained jurisdiction of the case, advising that any appeal of D’Agostino’s new decision would return to it.
Given those directives, D’Agostino’s new injunction was inevitable, though her opinion included signs she had not changed her mind about her original analysis.
In one footnote, responding to the issue of “hostility,” she wrote, “In conducting its analysis, the Court cannot ignore the drastic difference in the circumstances which have historically led to findings of religious hostility and the circumstances of the present case… Here, the only statements upon which the Second Circuit relies indicate, at worst, that OCFS intends to ensure compliance with anti-discrimination law in the adoption process, regardless of an organization’s religious beliefs. The Court finds the argument that these statements indicate hostility tenuous.”
Still, D’Agostino acknowledged she was bound by the Second Circuit’s opinion to credit this argument in deciding whether to issue the preliminary injunction.
At the heart of the constitutional free exercise issue is the US Supreme Court’s 1990 decision in Employment Division v. Smith, which found that there is no constitutional right under the Free Exercise Clause for individuals and organizations to refuse to comply with religiously-neutral laws of general application that incidentally burden their free exercise rights. The Supreme Court recognized, however, that a government policy that burdens other rights as well as religious free exercise rights presents a different issue and may carry a higher burden of justification.
New Hope had argued that requiring it to recommend to a court an adoption by a same-sex couple was “compelled speech,” but D’Agostino’s original response to this was to note that in acting as the “authorized agency” of OCFS, the agency was merely providing the court with “government speech” consistent with New York State policy.
Here, the Second Circuit panel disagreed, finding that the state gave authorized agencies substantial discretion, so their speech was entitled to First Amendment protection. It also concluded that New Hope’s argument that the regulation went beyond the scope of the statute, given its permissive rather than mandatory wording, deserved to be litigated.
The New Hope case is very similar to the case that will be argued in the Supreme Court on November 4, the day after the election, where Catholic Social Services is suing the City of Philadelphia over the city’s refusal to renew CSS’ contract to participate in the city’s foster care system. CSS, like New Hope, refused to provide its services to same-sex couples seeking to be foster parents. In its petition to the high court to review the Third Circuit Court of Appeals’ decision in favor of the city, CSS specifically asked the court both to reconsider its ruling in Employment Division v. Smith and to decide whether requiring a religious agency to violate is principles so that it can participate in the child welfare system violates its First Amendment rights.
It is unlikely that D’Agostino would issue a final ruling in the New Hope case until the Supreme Court rules in the CSS case — a decision that probably won’t come until 2021, perhaps as late as next June. In the meanwhile, the preliminary injunction blocks OCFS from taking any action to shut down New Hope’s adoption activities.
D’Agostino was appointed to the court by President Barack Obama.
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