RELIGION
Biased Adoption Agency, on Appeal, Wins a Life Line
Syracuse religious group gets second bite to prove NYS hostile to its free exercise rights
BY ARTHUR S. LEONARD
The US Second Circuit
Court of Appeals, based
in New York, has revived
a Syracuse religious
adoption agency’s constitutional
challenge to a regulation from the
New York Offi ce of Children and
Family Services (OCFS) that prohibits
discrimination based on
marital status or sexual orientation
by adoption agencies.
New Hope Family Services insists,
based on its religious principles,
that it cannot provide services
to unmarried people or same-sex
couples. OCFS threatened to terminate
New Hope’s status as an
approved agency if it does not comply.
New Hope has been an approved
provider for more than 50 years
and estimates that it has placed
more than 1,000 children. Although
it is not affi liated with any
church or formal religious movement,
it identifi es as a Christian
agency, requires its employees to
subscribe to articles of faith, and
— consistent with its belief that
children do best in a “Biblical”
family constructed of a husband,
wife, and child — will not consider
potential adoptive parents who do
not conform with that model.
New Hope maintains that if single
people or same-sex couples seek
its services, it would refer them to
another agency willing to provide
the services. As a result, it argues,
nobody is ultimately denied the
ability to adopt a child based on
their marital status or sexual orientation.
It also asserts that it has
not received inquiries from samesex
couples.
Under New York law, only agencies
“authorized” by the state may
provide adoption services, which
include evaluating potential adoptive
parents, matching them with
children needing placements, supervising
placements, and preparing
reports for courts that decide
whether to approve an adoption.
Although adoption was traditionally
limited to married couples,
over the years the Legislature
New Hope Family Services, a Syracuse adoption agency, claims it has a religious right to deny services
to same-sex couples.
amended the law to widen
the scope of individuals permitted
to adopt. In 2010, the adoption
law was amended to state
that an “adult unmarried person,
an adult married couple together,
or any two unmarried adult intimate
partners together may adopt
another person.” That amendment
took account of court decisions
that had allowed the same-sex
partners of parents to adopt their
children, some going the next step
by allowing same-sex couples to
jointly adopt.
At that time, same-sex couples
were still not able to legally marry
in New York, but the courts had
begun recognizing same-sex marriages
performed elsewhere, including
Canada and states such as
Massachusetts and Connecticut.
When Governor David Paterson
signed the bill into law, he stated
that the law would not require any
agency to change its current practices,
since it was “permissive,” not
mandatory.
The adoption law authorizes
OCFS to adopt regulations to implement
it. Among the new regulations
created in 2011, OCFS established
one providing that an
applicant to adopt children could
not be rejected “solely on the basis
of homosexuality.” Two years later,
the agency issued a new regulation
requiring authorized adoption
ALLIANCE DEFENDING FREEDOM
agencies to “prohibit discrimination
and harassment 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,
and to take reasonable steps to
prevent such discrimination or harassment
by staff and volunteers,
promptly investigate incidents of
discrimination and harassment,
and take reasonable and appropriate
corrective or disciplinary action
when such incidents occur.”
In 2018, OCFS audited the policies
and practices of each of the
state’s approved adoption agencies.
Taking note of New Hope’s policy of
declining services to single people
and same-sex couples, OCFS advised
New Hope that it needed to
change its policy to comply with
the non-discrimination policy. New
Hope dug in its heels, and eventually
OCFS warned that New Hope
would have to close if it would not
comply. There were no complaints
lodged against New Hope or any
evidence any applicant had been
turned away.
New Hope fi led suit in New York’s
Northern District federal court,
claiming a violation of its constitutional
rights, but the suit was
dismissed. Judge Mae D’Agostino
found that under a 1990 US Supreme
Court decision, Employment
Division v. Smith, New Hope
was not entitled to claim an exemption
based on its religious beliefs.
Justice Antonin Scalia’s majority
opinion in that case said that there
is no free exercise of religion exemption
from complying with state
laws of “general application” that
are “neutral” regarding religion.
New Hope appealed to the Second
Circuit Court of Appeals, which
reversed the district court on July
21. The three-judge panel found, in
an opinion by Circuit Judge Reena
Raggi, that the complaint fi led for
New Hope by Alliance Defending
Freedom, an anti-LGBTQ litigation
group, contained suffi cient factual
allegations to raise a question as
to whether New Hope was targeted
due to OCFS’ hostility to its religious
beliefs — based, at least in
part, on correspondence between
OCFS and New Hope suggesting
that.
The court’s opinion notes that
the adoption statute itself does not
ban discrimination based on sexual
orientation, but rather broadens
the previous categories of individuals
who are legally authorized to
adopt children, leaving some question
whether OCFS could adopt a
non-discrimination requirement
through a regulation. The court
also noted Paterson’s statement
when the law was amended in
2010 that it was not intended to require
any agencies to change their
policies, because the statute was
merely “permissive.”
The appeals court, therefore,
concluded that it was “premature”
for the district court to dismiss the
case outright and directed the trial
court to reinstate the lawsuit to
analyze whether New Hope is entitled
to a preliminary injunction
allowing it to remain open while
the case is being litigated.
The court was careful to make
clear that it was not deciding the
merits of the case, but also noted
that the Supreme Court has held
that the rule of Employment Division
v. Smith does not necessarily
apply to situations where a law
➤ NEW HOPE, continued on p.17
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