New Hope Family Services, Inc. v. Poole
5:18-cv-01419
N.D.N.Y.Oct 5, 2020Background
- New Hope Family Services is a faith-based, OCFS-authorized adoption agency with a perpetual corporate authorization that refuses, on religious grounds, to place children with same-sex or unmarried cohabiting couples.
- New York amended Domestic Relations Law in 2010 to expand who may adopt; OCFS promulgated 18 N.Y.C.R.R. § 421.3(d) (2013) requiring authorized adoption agencies to prohibit discrimination (including on sexual orientation, marital status, religion) and to investigate and correct incidents.
- In 2018 OCFS reviewed New Hope, concluded New Hope’s policy violated § 421.3(d), and demanded written confirmation that New Hope would revise its policy or close its adoption program and submit a close-out plan.
- New Hope sued alleging Free Exercise, Free Speech, Equal Protection, and unconstitutional-conditions violations and sought a preliminary injunction; district court initially dismissed but the Second Circuit reversed as to Free Exercise and Free Speech and remanded.
- On remand the district court found (on the preliminary-injunction record) that OCFS’s enforcement exhibited sufficient indicators of religious hostility such that § 421.3(d) was not neutral in application, that OCFS’s ultimatum amounted to compelled speech, and that a recusal-and-referral accommodation is a narrower means; the court granted a preliminary injunction preventing OCFS from revoking New Hope’s perpetual authorization during litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Free Exercise — neutrality/hostility and scrutiny | OCFS enforcement of §421.3(d) targets New Hope's religious beliefs; not neutral; requires strict scrutiny | §421.3(d) is a neutral, generally applicable anti-discrimination regulation serving compelling state interests | Court: totality of evidence (statements, enforcement history, statutory context) supports "slight suspicion" of hostility; regulation not neutral in operation; OCFS fails narrow-tailoring under strict scrutiny; New Hope likely to succeed |
| Free Speech — compelled speech | OCFS would force New Hope to state placements with unmarried/same-sex couples are in child's best interests — compelled speech | State interest in nondiscrimination and maximizing pool of adoptive parents justifies requirement; closure is an alternative | Court: OCFS's ultimatum is compelled speech; recusal-and-referral is a narrower means that protects state interests and New Hope's speech; New Hope likely to succeed |
| Free Speech — government speech doctrine | New Hope: placement recommendations are private/exclusive agency speech tied to its beliefs | OCFS: adoption recommendations are sufficiently state-controlled to be government speech | Court: record shows agencies exercise meaningful discretion; messages are not the State's own; not government speech; Free Speech protection applies |
| Preliminary injunction / irreparable harm | Loss of First Amendment freedoms constitutes irreparable harm; requests stay of revocation pending litigation | Because this is government regulation in the public interest, plaintiff must show likelihood of success and irreparable injury | Court: First Amendment injury established; likelihood of success on Free Exercise and Free Speech; granted preliminary injunction and waived bond pending merits |
Key Cases Cited
- New Hope Family Servs. v. Poole, 966 F.3d 145 (2d Cir. 2020) (appellate remand holding Free Exercise and Free Speech claims survived pleading stage and listing factors to consider on remand)
- Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) (tests for neutrality and governmental hostility toward religion)
- Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (neutral law of general applicability doctrine for Free Exercise)
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm'n, 138 S. Ct. 1719 (2018) (hostility in government decisionmaking can invalidate enforcement against religious actors)
- Fulton v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019) (analyzing anti-discrimination rules and religious accommodations in foster/adoption context)
- Agency for Int'l Dev. v. Alliance for Open Soc'y Int'l, Inc., 570 U.S. 205 (2013) (principle that government may not compel private parties to express views it approves)
- Univ. of Tex. v. Camenisch, 451 U.S. 390 (1981) (standard that preliminary injunction proceedings permit less formal evidence)
- Mullins v. City of New York, 626 F.3d 47 (2d Cir. 2010) (district courts may consider hearsay at preliminary-injunction stage)