New Hope Family Servs., Inc. v. Poole

Decision Date21 July 2020
Docket NumberNo. 19-1715-cv,August Term 2019,19-1715-cv
Citation966 F.3d 145
Parties NEW HOPE FAMILY SERVICES, INC., Plaintiff-Appellant, v. Sheila J. POOLE, in her official capacity as Acting Commissioner for the Office of Children and Family Services for the State of New York, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Roger G. Brooks (Jeana J. Hallock, Alliance Defending Freedom, Scottsdale, Arizona, John J. Bursch, Alliance Defending Freedom, Washington, District of Columbia, Christopher P. Schandevel, Alliance Defending Freedom, Ashburn, Virginia, Robert E. Genant, Genant Law Office, Mexico, New York, on the brief), Alliance Defending Freedom, Scottsdale, Arizona, for Plaintiff-Appellant.

Laura Etlinger, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief) for Letitia James, Attorney General of the State of New York, Albany, New York, for Defendant-Appellee.

Lori H. Windham, Nicholas R. Reaves, for Amicus Curiae The Becket Fund for Religious Liberty, Washington, District of Columbia.

Gregory Dolin, University of Baltimore School of Law, Baltimore, Maryland, for Amici Curiae The Jewish Coalition for Religious Liberty, Agudath Israel of America, The Rabbinical Alliance of America, and The Coalition for Jewish Values.

Geoffrey T. Blackwell, American Atheists, Inc., Washington, District of Columbia, Monica L. Miller, American Humanist Association, Washington, District of Columbia, Nicholas J. Little, Center for Inquiry, Washington, District of Columbia, Rebecca Markert, Freedom From Religion Foundation, Madison, Wisconsin, for Amici Curiae American Atheists, Inc., American Humanist Association, Center for Inquiry, and Freedom From Religion Foundation.

Cathren Cohen, Lambda Legal Defense and Education Fund, Inc., Los Angeles, California, Currey Cook, Karen L. Loewy, Lambda Legal Defense and Education Fund, Inc., New York, New York, Richard B. Katskee, Kenneth D. Upton, Jr., Carmen N. Green, Patrick Grubel, Americans United for Separation of Church and State, Washington, District of Columbia, for Amici Curiae Civil Rights Organizations.

Before: Cabranes, Raggi, Circuit Judges, Korman, District Judge.*

Reena Raggi, Circuit Judge:

An important question of law animates this case: What is the proper relationship between the First Amendment—specifically, its guarantees of free exercise of religion and free speech—and laws protecting against various forms of discrimination? The question has arisen most recently when religious organizations, like Plaintiff here, seek some exemption from laws prohibiting discrimination on the basis of sexual orientation, arguing that such laws compel them to speak and behave contrary to the dictates of their consciences. The answer to this question—whether, in particular circumstances, anti-discrimination laws violate First Amendment rights—may profoundly affect our system of ordered liberty.1

But at this early stage in the case, we need not answer that ultimate question. Instead, we need decide only whether Plaintiff has stated a plausible claim for the violation of its First Amendment rights, affirming the district court if we conclude that Plaintiff has not stated a plausible claim, or reversing if we conclude that Plaintiff has.

Plaintiff, New Hope Family Services, Inc. ("New Hope"), is a voluntary, privately funded Christian ministry located in Syracuse, New York. Its avowed mission is to assist women with unplanned pregnancies and to provide temporary foster care and adoptive homes for children whose birth parents cannot care for them. In its more than 50 years of operation, New Hope has placed approximately 1,000 children with adoptive parents. There appears to be no question that each of these placements has been in the best interests of the adopted child. While New Hope operates under a certificate of incorporation authorizing it to provide adoption services in New York State, it has no contract with any government entity, and it does not receive any public funding.

At issue on this appeal is whether New Hope will be permitted to continue its adoption ministry in New York State. That comes into question because New Hope’s ministry is informed by its religious belief in the biblical model of marriage as one man married for life to one woman. New Hope asserts that, consistent with this belief, it cannot recommend adoption by unmarried or same-sex couples because it does not think such placements are in the best interests of a child. Accordingly, it does not itself work with such couples but, rather, refers them to other adoption agencies. In 2018, officials of the New York State Office of Children and Family Services ("OCFS") informed New Hope that such a policy violates a 2013 state regulation prohibiting 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 ...." N.Y. Comp. Codes R. & Regs. tit. 18 (" 18 NYCRR"), § 421.3(d) (emphases added). OCFS officials told New Hope that it either had to change its policy to conform to the regulation or close its adoption operation.

Unwilling to do either, New Hope initiated this action in the United States District Court for the Northern District of New York (Mae A. D’Agostino, Judge ). Pursuant to 42 U.S.C. § 1983, New Hope charged OCFS’s Acting Commissioner Sheila J. Poole with violating its rights under the Constitution’s Free Exercise of Religion, Free Speech, and Equal Protection Clauses, see U.S. CONST . amends. I, XIV, and requested declaratory and injunctive relief.2 On cross-motions by New Hope for a preliminary injunction and by OCFS for dismissal, the district court granted dismissal pursuant to Fed. R. Civ. P. 12(b)(6), concluding that New Hope failed to plead any plausible constitutional claims. Consequently, the court denied New Hope’s preliminary injunction motion as moot. See New Hope Family Servs. Inc. v. Poole , 387 F. Supp. 3d 194 (N.D.N.Y. 2019). New Hope appeals from so much of the district court judgment, entered on May 16, 2019, as dismissed its Free Exercise and Free Speech claims and rejected its preliminary injunction motion.

For the reasons stated in this opinion, we reverse the challenged dismissal judgment, vacate the denial of New Hope’s motion for a preliminary injunction, and remand the case to the district court for further proceedings consistent with this opinion, including consideration of whether to grant a preliminary injunction.

I. Background

In recounting the background to this case, we follow the standard applicable to the review of motions to dismiss, i.e. , we accept all factual allegations pleaded by New Hope in its complaint as true, and we draw all reasonable inferences in its favor. See, e.g. , DiFolco v. MSNBC Cable L.L.C. , 622 F.3d 104, 110–11 (2d Cir. 2010).

A. New York Adoption Law

Private charities—many of them religiously affiliated—have long played an important role in caring for orphans and abandoned children in New York.3 Adoption in New York, however, is now "solely the creature of ... statute," Matter of Jacob , 86 N.Y.2d 651, 657, 636 N.Y.S.2d 716, 660 N.E.2d 397 (1995) (internal quotation marks omitted), and requires "a judicial proceeding" for a person (or couple) to "take[ ] another person into the relation of child and thereby acquire[ ] the rights and incur[ ] the responsibilities of parent in respect of such other person," N.Y. Dom. Rel. Law § 110.

Since first enacted in 1873, New York’s adoption law has had as its primary purpose ensuring the "best interest[s]" of the child to be adopted. Matter of Jacob , 86 N.Y.2d at 658–59, 636 N.Y.S.2d 716, 660 N.E.2d 397. But if that objective has remained constant, not so the factors informing it. Over a century and a half, New York’s adoption law has been amended "innumerable times," such that its many requirements and prohibitions—both those established by statute and those propounded by regulation—have aptly been described as "a complex and not entirely reconcilable patchwork." Id. at 659, 636 N.Y.S.2d 716, 660 N.E.2d 397. Nevertheless, because some understanding of that law is necessary to discuss New Hope’s claims, we begin by discussing relevant statutory and regulatory provisions, starting with those pertaining to authorized adoption agencies.

1. Authorized Agencies

Adoption services in New York can only be provided by "authorized agencies," i.e. , entities incorporated or organized under New York law with corporate or legal authority "to care for, to place out or to board out children." N.Y. Soc. Serv. Law §§ 371(10)(a), 374(2).4 More than 130 authorized agencies presently operate in New York. Fifty-eight such agencies are public, each operating as a unit of one of the State’s social services districts. More than 70 authorized agencies are private, non-profit organizations that voluntarily provide adoption services. Some do so pursuant to contracts with local social services districts and with government funding; others, such as New Hope, operate independently.

The need for adoption services in New York, whether public or private, is undeniably great. In fiscal year 2017, more than 27,000 children in the State were in foster care. Some 4,400 were awaiting adoption. Nevertheless, only 1,729 were actually adopted that year.

To facilitate adoptions, state law empowers authorized agencies to receive legal custody of children whose parents cannot care for them. Id. § 384; 18 NYCRR § 421.6. Authorized agencies can then board such children in foster homes or place them in prospective adoptive homes based on the agencies’ assessment of the children’s "best interests." Most relevant here, authorized agency approval, or consent, is required to finalize the adoption of any child placed by that agency. See N.Y. Dom. Rel. Law §§ 111(1)(f), 113(1).

A thicket of regulations applies to an authorized...

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