NEW YORK — The Second Circuit Court of Appeals has reversed the dismissal of a lawsuit filed by a foster and adoption agency that is facing an ultimatum from the State of New York to either allow placement in homes where there is not both a mother and a father or discontinue its child placement services altogether. The case, now being revived, has been sent back to the district court for further deliberation.
“It is plainly a serious step to order an authorized adoption agency such as New Hope — operating without complaint for 50 years, taking no government funding, successfully placing approximately 1,000 children, and with adoptions pending or being supervised — to close all its adoption operations,” the court wrote on Tuesday.
“All the more serious when … the agency has, for five years and without objection by [the State], used recusal and referral to avoid rejecting applicants on the basis of its religious beliefs,” it said. “A court properly starts by asking what authority [the State] had to order such a shut down, and what procedures attend such a decision.”
Judges Jose Cabranes, nominated to the bench by then-President Bill Clinton; Reena Raggi, nominated by then-President George W. Bush; and Edward Korman, a district judge nominated by then-President Ronald Reagan, heard the case.
“We agree that New Hope’s free exercise and free speech claims should not have been dismissed at the pleadings stage and, therefore, that its preliminary injunction motion is not moot,” they concluded.
As previously reported, New Hope Family Services, which was founded in 1965 by a pastor and seeks “to be Christ’s hands extended to offer hope and help to people with pregnancy, parenting, adoption, or post-abortion needs,” was visited in September 2018 by a representative of the New York Office of Children and Family Services (OFCS) for an official review that included meeting with staff and perusing sample records.
Syracuse regional office Director Sara Simon later sent New Hope Interim Director Judy Geyer a letter that, while requesting a few policy adjustments, praised the organization for its work.
“Our office found that your program has a number of strengths in providing adoption services within the community. One of which is the strong emphasis on assisting the birth parents in making an informed decision for their newborn, providing them time to make the decision, along with a supportive and detailed adoptive family selection process,” the correspondence read.
However, just days later, Geyer received a phone call from Suzanne Colligan, who had conducted the review, to advise that a problem had been found with the faith-based organization’s placement policies. Colligan reportedly told Geyer that New Hope must allow placement with unmarried couples and homosexuals, or the adoption agency would be “choosing to close.”
Geyer said that New Hope could in no way violate its religious convictions and that the organization would “never choose to close. You will be forcing us to close.” According to the legal challenge, Colligan advised during the call that “[s]ome Christian ministries have decided to compromise and stay open.”
Geyer soon after received a formal letter from Laura Velez, the deputy commissioner of OCFS division of child welfare and community services.
“It was found that the agency’s policy pertaining to not placing ‘children with those who are living together without the benefit of marriage’ or ‘same sex couples’ violates Title 18 NYCRR § 421.3, and is discriminatory and impermissible,” Velez wrote.
She requested a formal response in regard to revising the policy to eliminate the exclusion, and warned that “should the agency fail to bring the policy into compliance with the regulation, OFCS will be unable to approve continuation of NHFS’ current adoption program and NHFS will be required to submit a close-out plan for the adoption program.”
New Hope Family Services consequently sought an injunction in court, but in May, Judge Mae D’Agnostino — who was nominated to the bench by then-President Barack Obama — ruled that the government had applied its non-discrimination policy fairly and equally, and that New Hope’s claims regarding violations of the First and Fourteenth Amendment could not be substantiated.
She also concluded that OCFS’ non-discrimination policy did not violate New Hope’s religious exercise rights because the organization could continue to make its objections known while simultaneously complying with the State by allowing child placement in same-sex or unwed homes.
“Given the extensive religious ministry and information provided to potential adoptive parents, there is no doubt that New Hope’s general disapproval of cohabiting unmarried couples and same sex couples will continue to be made clear. Indeed, nothing is preventing New Hope from continuing to share its religious beliefs throughout the entire process,” D’Agostino wrote.
“All that is forbidden is discrimination against prospective adoptive parents on the basis of their marital status and/or sexual orientation.”
New Hope Family Services appealed the ruling to the Second Circuit Court of Appeals, which issued an emergency order in November that allowed the agency to continue with already-existing adoption cases while litigation is underway.
On Tuesday, it reversed D’Agostino’s ruling, noting that the case differs from Fulton v. City of Philadelphia, which is currently before the U.S. Supreme Court in that New Hope Family Services is a private entity, is not under contract with the government and receives no funding from it.
It also opined that the plaintiffs presented “plausible claims under the free exercise and free speech clauses of the U.S. Constitution” that “raise a plausible suspicion that OCFS acted with hostility towards New Hope because of [its] religious beliefs.” The three-judge panel found the agency’s argument persuasive in that the imposed regulation would violate its freedom of association.
Further, as there is no evidence that any same-sex household was ultimately unable to adopt due to New Hope policy and practice of referral, “it is not evident that, pending resolution of the merits of this case, recusal and referral poses such a risk of trauma and social harm to unmarried and same-sex adoption applicants that nothing less than the closure of New Hope’s adoption operation can adequately safeguard the State’s interest.”
It sent the case back to the lower court for further deliberation, including whether the preliminary injunction sought by New Hope should be granted.
The religious liberties organization Alliance Defending Freedom (ADF), which is representing the agency in court, applauded the court’s reversal and remand.
“New Hope’s faith-based services do nothing to interfere with other adoption providers, but banishing it means fewer kids will find permanent homes, fewer adoptive parents will ever welcome their new child, and fewer birth parents will enjoy the exceptional support that New Hope has offered for decades,” Vice President of Appellate Advocacy John Bursch said in a statement.
“Additionally, government officials are not being neutral when they single out religious organizations for hostile treatment based on their beliefs about marriage. That’s a flagrant violation of the U.S. Constitution.”