New Hope Family Services, which describes itself as a Christian adoption agency licensed by New York State to provide adoption services, has won a preliminary injunction to block New York’s Office of Children and Family Services (OCFS) from closing the agency because of its refusal to provide services to married same-sex couples. New Hope Family Services, Inc. v. Poole, 2020 WL 5887296, 2020 U.S. Dist. LEXIS 183926 (N.D.N.Y., October 5, 2020).
New Hope sued Sheila J. Poole, OCFS’s Commissioner, after OCFS instructed New Hope to prepare to close down its adoption services if was unwilling to change its policy and work with married same-sex couples as required by a state regulation. U.S. District Judge Mae A. D’Agostino issued the injunction after being directed by the U.S. 2nd 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 2nd Circuit panel reversed the dismissal decision. See 966 F. 3d 145 (2nd Cir. 2020), reversing and remanding 387 F.Supp.3d 194 (N.D.N.Y. 2019).
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 will ultimately grant the adoption. Evangelical Family Service was formed in 1965 by a Christian minister to undertake this work in Syracuse and was granted a two-year certificate of incorporation by the state. When the certificate came up for renewal, the state extended permanent certification. Eventually the agency was renamed New Hope Family Services. At that time, 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 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.” This amendment updated the statute to comply with what the courts had been doing, as the New York Court of Appeals had recognized second-parent adoptions for same-sex couples during the 1990s. The adoption statute empowers OCFS to adopt regulations for enforcing statutory rights, which led it to adopt a non-discrimination regulation and to inform 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 July 2011, of course, married same-sex couples would be covered by the amended adoption statute, since the Marriage Equality Law adopted a policy of equal rights for same-sex marriage couples, and authorized agencies were so advised. In 2015, the Supreme Court found that same-sex couples have a federal constitutional right to marry, and their marriages are entitled to the same treatment under state law as all other marriages.
Regardless of these developments, New Hope retained its existing policy, which was to limit its services to unmarried adults who were not living together with other adults in an intimate relationship, and to heterosexually married adults. If New Hope was approached for services by individuals or couples who did not come within this policy, it would offer to refer them to other agencies for adoption services. It refers to this policy as “recusal and referral.”
In 2018, OCFS decided to audit the policies of all authorized agencies. It had never received a complaint about denial of services by New Hope, so this was the first time OFCS was confronted by New Hope’s non-compliant policy. After some conversations between the office and New Hope, in the course of which OCFS staff made some statements that New Hope (and the 2nd Circuit panel) seized upon as showing “hostility” to New Hope’s religious beliefs, the written ultimatum was delivered late in the fall of 2018, setting a deadline for New Hope to adjust its policy by the end of November. Instead, New Hope filed this lawsuit, represented by Alliance Defending Freedom, a religious-freedom litigation organization that frequently challenges gay rights policies in the courts.
New Hope argued that the regulation went beyond the statute by compelling authorized agencies to provide services to same-sex couples, whereas the statute was worded in permissive language – that agencies were allowed to provide service to such couples. At the time the statute was adopted, Governor David Paterson issued a statement that it would not require any agencies to change their polices. Thus, New Hope argued, OCFS was going beyond its authority in trying to force New Hope to change its policy. Furthermore, New Hope argued, requiring it to serve same-sex couples against its religious beliefs would violate its First Amendment rights of free speech and free exercise of religion, and, citing the Supreme Court’s Masterpiece Cakeshop decision, it claimed that OCFS had expressed hostility to New Hope’s religious beliefs. New Hope 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 in May 2019, finding that the regulation was within the scope of the statute and did not violate New Hope’s constitutional rights. At the same time, she denied the motion for injunctive relief. New Hope appealed to the 2nd Circuit, which reversed the dismissal in July 2020 and sent the case back to Judge D’Agostino. 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, and directed Judge D’Agostino to reconsider the issue of the preliminary injunction in that light. The three-judge panel, which also mentioned the “hostility” issue, retained jurisdiction of the case, advising that if D’Agostino issued a new decision that was appealed, the appeal would go to the same three-judge panel.
Given the realities of the situation, it was foreordained that D’Agostino would issue the injunction, although there were signs in her opinion that she had not changed her mind about her original analysis but was basically following the directions of the court of appeals, her explanations flowing from their decision. 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.” But she acknowledged that she was bound by the 2nd Circuit’s opinion to credit this argument for purposes of deciding whether to issue the preliminary injunction.
At the heart of the constitutional free exercise issue is the U.S. Supreme Court’s 1990 decision Employment Division v. Smith, 494 U.S. 873, which ruled 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. In that case, however, the Supreme Court recognized that a government policy that burdens other rights as well as religious free exercise rights (a so-called “hybrid rights case”) presents a different issue and may carry a higher burden of justification by the government. Judge D’Agostino had originally responded to this point by rejecting New Hope’s compelled speech argument, labeling as “government speech” any recommendation that they would make to a court to approve an adoption by a same-sex couple, on the premise that as an “authorized agency” they were performing an inherently governmental function on behalf of the state, applying state-specified criteria, and they were not speaking for themself. The 2nd Circuit panel disagreed, finding that the state gave authorized agencies substantial discretion, so their speech was entitled to First Amendment protection. Furthermore, New Hope’s argument that the regulation went beyond the scope of the statute was also arguable, given the statute’s permissive rather than mandatory wording. In that case, New Hope should be entitled to litigate the case.
Concerning the public interest, which is considered on a motion for injunctive relief, closing down New Hope would reduce the number of agencies in its geographical area providing adoption services, it claims to never have been approach by same-sex couples seeking its services, and in the past New Hope had been repeatedly praised for the high quality of its services, so on balance it was arguable that the public interest supports keeping it open while the case continues.
The New Hope case is very similar to a case that will be argued in the Supreme Court on November 4, the day after election day, Fulton v. City of Philadelphia, in which Catholic Social Services is suing the City of Philadelphia over the city’s refusal to renew its contract with CSS to participate in the city’s foster care system. CSS refuses to provide its services to same-sex couples seeking to be foster parents.
In granting CSS’s petition to review a decision in favor of the city by the U.S. Court of Appeals for the 3rd Circuit, see 922 F.3d 140 (3rd Cir. 2019), CSS specifically asked the Supreme Court both to reconsider its ruling in Employment Division v. Smith and to consider whether requiring a religious agency to violate is principles in order to participate in the child welfare system violates its 1st Amendment rights. There are already at least four members of the Court who have signaled their desire to reconsider Employment Division. The probable addition of Judge Amy Coney Barrett to the Court may well tip the Court over to a majority to overrule or narrow the Employment Division precedent, which could affect litigation in other cases challenging Trump Administration policies to carve broad religious and moral objection protection out of non-discrimination rules.
It is unlikely that Judge D’Agostino would issue a final ruling in the New Hope case until after the Supreme Court rules in the CSS case. Such a ruling is unlikely to come before the beginning of 2021 and theoretically could come as late as June. In the meanwhile, the preliminary injunction blocks OCFS from taking any action to shut down New Hope’s adoption activities.