New Hope Family Services, Inc. v. Poole ( 2020 )

19-1715-cv
New Hope Family Services, Inc. v. Poole
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2019
No. 19-1715-cv
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.
On Appeal from the United States District Court
for the Northern District of New York
ARGUED: NOVEMBER 13, 2019
DECIDED: JULY 21, 2020
Before: CABRANES, RAGGI, Circuit Judges, KORMAN, District Judge. *
_____ ______
Plaintiff, New Hope Family Services, Inc., is a voluntary,
privately funded Christian ministry devoted to providing adoption
services and authorized to do so in the State of New York for more
than 50 years. New Hope professes that, consistent with its religious
beliefs, it cannot recommend adoptions by unmarried or same-sex
couples. It does not itself disapprove such couples; rather, it refers
them to other adoption agencies. In 2018, the State’s Office of
Children and Family Services (“OCFS”) informed New Hope that its
policy respecting unmarried and same-sex couples violates the anti-
discrimination mandate of N.Y. Comp. Codes R. & Regs. tit. 18,
§ 421.3(d). OCFS advised New Hope that it either had to change its
policy or close its operation. Rather than do either, New Hope sued
OCFS in the United States District Court for the Northern District of
New York (D’Agostino, J.) for violations of its First and Fourteenth
Amendment rights. It now appeals from a judgment dismissing its
complaint for failure to state a claim and denying its motion for a
preliminary injunction as moot. New Hope argues that the district
court erred in concluding that it failed to state plausible claims for
violations of its rights of Free Exercise of Religion and Free Speech
and, therefore, in rejecting its preliminary injunction motion as moot.
*Judge Edward R. Korman, of the United States District Court for the Eastern
District of New York, sitting by designation.
2
New Hope urges this court both to reinstate these claims and to grant
it preliminary injunctive relief.
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. We
remand the case to the district court for further proceedings consistent
with this opinion, including whether to grant New Hope a
preliminary injunction preventing OCFS from mandating the closure
of New Hope’s adoption operation while the merits of this case are
litigated. Pending the district court’s ruling on that preliminary
injunction motion, the narrow injunction granted by this court shall
remain in effect.
REVERSED IN PART, VACATED IN PART, AND REMANDED.
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,
3
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
4
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.
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
1 See Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE
L.J. 877, 880 (1963) (observing that “freedom of expression” is “an essential
element in a good society” that cannot be regulated or restricted even to achieve
“other or more inclusive ends—such as virtue, justice, equality . . . ”; these must
be pursued by “counter-expression and the regulation or control of conduct which
is not expression”).
5
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
6
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,
2Because Acting Commissioner Poole is sued only in her official capacity, in this
opinion we refer to defendant as the State agency Poole heads, i.e., “OCFS.”
7
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.
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
3 For example, in 1806, a group of New York City women—including Mrs.
Alexander Hamilton—founded the Orphan Asylum Society, the city’s first private
charity devoted to caring for orphaned children who would otherwise have been
consigned to public almshouses. See 1 CHILDREN AND YOUTH IN AMERICA: A
DOCUMENTARY HISTORY 280 (Robert H. Bremner et al., eds., 1970); Mary Kelley,
Book Review, 90 J. OF AM. HIST. 1023, 1023 (2003) (reviewing ANNE M. BOYLAN,
THE ORIGINS OF WOMEN’S ACTIVISM: NEW YORK AND BOSTON, 1797–1840 (2002)).
In 1817, Catholic nuns affiliated with the Sisters of Charity began caring for New
8
“solely the creature of . . . statute,” Matter of Jacob, 86 N.Y.2d 651, 657
(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. 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
York City orphans at the St. Patrick’s Asylum. See ROBERT ERNST, IMMIGRANT LIFE
IN NEW YORK CITY, 1825–1863, 35 (1949). The Hebrew Orphan Asylum was
established in Manhattan in 1822. See REPORT OF THE PRESIDENT, THE HEBREW
BENEVOLENT AND ORPHAN ASYLUM SOCIETY OF THE CITY OF NEW YORK,
PROCEEDINGS OF THE SEVENTY-FOURTH ANNUAL MEETING 15–16 (1897). The
Catholic Orphan Society of Brooklyn was founded in 1826. See MARY J. OATES,
THE CATHOLIC PHILANTHROPIC TRADITION IN AMERICA 6 (1995). New York’s
Episcopal Church created an Orphan Home and Asylum in New York City in 1851.
See COMMITTEE ON THE HISTORY OF CHILD-SAVING WORK, NATIONAL CONFERENCE
ON SOCIAL WELFARE, HISTORY OF CHILD-SAVING IN THE UNITED STATES 158 (1893).
New York’s two best known institutions devoted to caring for orphaned,
abandoned, and otherwise needy children, the Children’s Aid Society and the
New York Foundling Hospital, were created, respectively, in 1853 by private
philanthropists and in 1869 by the Sisters of Charity. See Joseph M. Hawes,
Creating New Families: The History of Adoption in the United States, 32 REVIEWS IN
AM. HIST. 90, 91 (2004) (book review); MARTIN GOTTLIEB, THE FOUNDLING 11–12
(2001).
9
propounded by regulation—have aptly been described as “a complex
and not entirely reconcilable patchwork.” Id. at 659. 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
4Children are “placed out” for adoption; they are “boarded out” for foster care.
See N.Y. Soc. Serv. Law § 371(12), (14).
10
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 agency’s
placement of a child for adoption. These regulations detail numerous
areas for agency consideration, but they comprise no mere
quantitative checklist. Rather, most regulations, by their nature,
entrust authorized agencies with considerable discretion in
determining the best interests of a child. For example, agencies are
instructed that in “[m]ak[ing] placement decisions,” a consideration
of the child’s “best interests” shall “includ[e], but [is] not limited to”
three factors. 18 NYCRR § 421.18(d). First is “the appropriateness of
placement in terms of the age of the child and of the adoptive
parent(s).” Id. § 421.18(d)(1). “Appropriateness” is hardly a matter of
mathematical calculation; rather, it calls for the exercise of judgment.
That same conclusion obtains for the second factor: “the physical and
emotional needs of the child in relation to the characteristics,
capacities, strengths and weaknesses of the adoptive parent(s).” Id.
§ 421.18(d)(2). Judgment is also called for by the third factor, which
11
requires placing sibling children together absent documented
findings, made by the agency in consultation with identified
professionals, that such placement would inure to the detriment of
one or more of the children. See id. § 421.18(d)(3).
Judgment and discretion also necessarily inform the “adoption
study process” that must precede any placement. Id. § 421.15. This is
evident from the litany of topics that an authorized agency is expected
to discuss in “explor[ing] each applicant’s ability to be an adoptive
parent.” Id. § 421.15(d). Among these are the “characteristics and
needs of children available for adoption”; principles of child
development; the applicant’s “reasons” for wishing to adopt;
“understanding of the adoptive parent role”; “psychological
readiness to assume responsibility for a child”; and “self-assessment”
of “capacity to provide a child with a stable and meaningful
relationship.” Id. The agency is further expected to explore other
household members’ “attitudes . . . about adoption,” and “the[ir]
awareness of the impact that adoptive responsibilities have upon
family life.” Id. Again, none of these matters is quantifiable; rather,
they call for qualitative assessments by authorized agencies.
Agency judgment will also have to inform the required
assessment of a prospective adoptive parent’s,
(1) capacity to give and receive affection;
(2) ability to provide for a child’s physical and
emotional needs;
(3) ability to accept the intrinsic worth of a child, to
respect and share his past, to understand the
12
meaning of separation he has experienced, and to
have realistic expectations and goals;
(4) flexibility and ability to change;
(5) ability to cope with problems, stress and
frustration;
(6) feelings about parenting an adopted child and the
ability to make a commitment to a child placed in
the home; and
(7) ability to use community resources to strengthen
and enrich family functioning.
Id. § 421.16(a).
While this sampling of applicable regulations indicates a
largely holistic approach to identifying the best interests of an
adopted child, regulations single out certain factors that should not
be considered or, at least, not be determinative. For example, a
prospective adoptive parent cannot “be rejected on the basis of low
income, or because of receipt of income maintenance payments.” Id.
§ 421.16(j). Nor can rejection be based on marital status, subject to
certain caveats. Id. § 421.16(d). 5 “Race, ethnic group, and religion”
also cannot be a basis for rejection, id. § 421.16(i), though here too
5 18 NYCRR § 421.16(d) states with respect to “[m]arital status”:
Agencies must not consider marital status in their acceptance or
rejection of applicants. However, one married partner may not adopt
without the other unless one partner is living separate and apart from
his or her spouse pursuant to a legally recognizable separation
agreement or decree of separation, or one partner has been or will be
living separate and apart from his or her spouse for a period of three
years or more prior to the commencement of the adoption proceeding.
13
other statutory and regulatory provisions appear to qualify the
prohibition. 6
At the same time, regulations instruct an agency to reject
adoption applicants who fail to cooperate in the study process. See id.
§ 421.15(g)(1). Rejection is also warranted if the agency finds an
applicant “physically” or “emotionally” “incapable of caring for an
adopted child,” id. § 421.15(g)(2)(i)–(ii), or if the agency concludes that
“approval would not be in the best interests of children awaiting
adoptions,” id. § 421.15(g)(2)(iii)—both matters requiring an exercise
of judgment. Rejection, however, triggers certain procedural
safeguards, including the opportunity for a hearing before OCFS. See
id. § 421.15(g)(3)–(8).
On the other hand, if, after completion of the required study,
an authorized agency decides to approve adoption by a particular
applicant or applicants—thereby concluding that adoption by that
applicant or applicants is “in the best interests of children awaiting
adoptions,” id. § 421.15(g)(2)(iii)—the agency creates “a written
6See 18 NYCRR § 421.18(c) (requiring authorized agency to place child in adoptive
home “as similar to and compatible with his or her religious background as
possible with particular recognition that section 373(3) of the Social Services Law
requires a court, when practicable, to give custody through adoption only to
persons of the same religious faith as that of the child”); id. § 421.18(d)(2)
(permitting authorized agency, when making placement decisions, to “consider
the cultural, ethnic or racial background of the child and the capacity of the
adoptive parent to meet the needs of the child with such a background as one of a
number of factors used to determine best interests,” but only where “[r]ace, color
or national origin of the child or the adoptive parent . . . can be demonstrated to
relate to the specific needs of an individual child”).
14
summary of the study findings and activities, including significant
characteristics of . . . family members, the family interaction, the
family’s relationship to other persons and the community, the
family’s child rearing practices and experiences, and any other
material needed to describe the family for adoption purposes,” and
provides that summary “to workers in the agency . . . responsible for
making placement decisions about children,” id. § 421.15(e)(1). The
agency works with the approved prospective parents to identify an
adoptive child to be placed with them, “[m]ak[ing] placement
decisions on the basis of the best interests of th[at] child.” Id.
§ 421.18(d). The agency and prospective parents then submit to a
court a verified petition for adoption and an adoptive placement
agreement, see N.Y. Dom. Rel. Law § 112(2)–(3), (5), and the court
decides whether to accept the agency’s approval and to order
adoption, id. §§ 113, 114. Generally, “no order of adoption shall be
made until [the adoptive] child has resided with the adoptive parents
for at least three months.” Id. § 112(6).
New York law authorizes the Commissioner of OCFS to enforce
laws and rules pertaining to adoption. See N.Y. Soc. Serv. Law
§ 34(3)(e). 7 By law, OCFS is authorized to visit, inspect, and supervise
authorized adoption agencies. See id. § 371(10). Where OCFS
determines that an agency has placed or boarded a child (1) “for
7 It is undisputed on this appeal that this enforcement authority, originally
conferred on the Commissioner of the New York State Department of Social
Services, see N.Y. Soc. Serv. Law § 34(3)(e), now rests with OCFS, a branch of the
New York State Department of Family Assistance, the successor agency to the
Department of Social Services, see 1997 N.Y. Laws 2922.
15
purposes of gain,” (2) “without due inquiry as to the character and
reputation of the person with whom such child is placed,” (3) “in such
manner that such child is subjected to cruel or improper treatment or
neglect or immoral surroundings,” or (4) “in such manner that the
religious faith of the child is not preserved and protected as provided
[by law],” OCFS is specifically authorized, upon notice and an
opportunity to be heard, to “issue an order prohibiting such an
authorized agency . . . from thereafter placing out or boarding out any
child.” Id. § 385(1).
2. 18 NYCRR § 421.3(d)
We now turn to the regulation at issue in this case, 18 NYCRR
§ 421.3(d), beginning with some background to its pronouncement.
As the New York Court of Appeals has observed, the “pattern
of amendments” to New York adoption law over the last 75 years
“evidences a successive expansion of the categories of persons
entitled to adopt.” Matter of Jacob, 86 N.Y.2d at 660–61. Consistent
with a general purpose to assure that “as many children as possible
are adopted into suitable family situations,” certain of these
amendments reflect “fundamental changes that have taken place in
the makeup of the family.” Id. at 661 (internal quotation marks
omitted).
As relevant here, until 2010, New York’s Domestic Relations
Law permitted only “[a]n adult unmarried person or an adult
husband and his adult wife together” to adopt a child. N.Y. Dom. Rel.
Law § 110 (2009). This law did not prohibit a homosexual person from
16
adopting as a single “adult unmarried person.” See Matter of Jacob, 86
N.Y.2d at 662 (stating that “New York does not prohibit adoption by
homosexuals,” and observing that administrative regulation forbids
denial of agency adoption on basis of homosexuality 8). But it was
understood not to permit an unmarried couple, whatever their sexual
orientation, jointly to adopt a child.
That conclusion was eroded, however, by court rulings
beginning with the 1995 decision in Matter of Jacob, 86 N.Y.2d 651. In
that case, the New York Court of Appeals construed § 110’s “adult
unmarried person” phrase to allow the same-sex partner of a child’s
biological mother to adopt the child without the mother surrendering
her rights, thereby effectively allowing a same-sex couple to become
the child’s parents. See id. at 660–62, 665–68. A decade later, the
Fourth Department construed Jacob’s reasoning to compel the
conclusion that an unmarried, same-sex couple—neither member of
which was the child’s biological parent—could jointly petition for
adoption of a child rather than being required to file separately. See
In re Adoption of Carolyn B., 6 A.D.3d 67, 68–70, 774 N.Y.S.2d 227 (4th
Dep’t 2004).
8The referenced regulation stated that adoption “[a]pplicants shall not be rejected
solely on the basis of homosexuality.” 18 NYCRR § 421.16(h)(2) (2009). Rather,
“[a] decision to accept or reject when homosexuality is at issue shall be made on
the basis of individual factors as explored and found in the adoption study process
as it relates to the best interests of adoptive children.” Id. This regulation,
promulgated in or about 1981, remained in effect until 2013, when it was
supplanted by 18 NYCRR § 421.3(d), discussed infra at 19–21.
17
Mindful of these decisions, the New York State legislature, in
2010, amended § 110 to state that “[an] adult unmarried person, an
adult married couple together, or any two unmarried adult intimate
partners together may adopt another person.” N.Y. Dom. Rel. Law
§ 110. In a signing statement accompanying his approval of the bill,
then-Governor David Paterson observed that the amendment
expanded qualified adoption applicants to include same-sex couples,
“mak[ing] absolutely clear a principle that has already been
established by the courts, and that ensures fairness and equal
treatment to families that are ready, willing and able to provide a
child with a loving home . . . includ[ing] same-sex couples, regardless
of whether they are married.” Gov. Mem., New York Bill Jacket, 2010
S.B. 1523, ch. 509 (internal citation omitted). At the same time,
however, the Governor stated that “since the statute is permissive, it
would allow for such adoptions without compelling any agency to
alter its present policies.” Id. In sum, he characterized amended § 110
as “a wise, just and compassionate measure that expands the rights of
New Yorkers, without in any way treading on the views of any citizen
or organization.” Id.
The new law went into effect on September 17, 2010, and
prompted OCFS to issue two “informational letters” to authorized
agencies. The first letter, dated January 11, 2011, and entitled
“Adoption by Two Unmarried Adult Intimate Partners,” stated that
amended § 110 “codifies . . . court decisions that authorize unmarried
persons to adopt a child together,” but “does not change or alter the
standards currently in place for the approval of an individual as an
18
adoptive parent.” OCFS Informational Ltr., 11-OCFS-INF-01. A copy
of the Governor’s quoted signing statement was attached to this letter.
The second letter, dated July 11, 2011, and entitled
“Clarification of Adoption Study Criteria Related to Length of
Marriage and Sexual Orientation,” addressed the effect of amended
§ 110 on two existing OCFS regulations: 18 NYCRR § 421.16(e)
(prohibiting rejection of applicants for adoption study on basis of
“length of time they have been married, provided that time is at least
one year”) and 18 NYCRR § 421.16(h)(2) (prohibiting rejection of
applicants “solely on the basis of homosexuality”). As to the first
regulation, OCFS instructed authorized agencies that the amended
statute no longer permitted rejecting an adoption applicant “solely on
the basis that the length of marriage is less than one year.” OCFS
Informational Ltr., 11-OCFS-INF-05. As to the second regulation,
OCFS stated that its purpose “is to prohibit discrimination based on
sexual orientation in the adoption study assessment process,” and
that “OCFS cannot contemplate any case where the issue of sexual
orientation would be a legitimate basis, whether in whole or in part,
to deny the application of a person to be an adoptive parent.” Id.
Two years later, in November 2013, OCFS replaced both
regulations with the provision here at issue: 18 NYCRR § 421.3(d). See
19
35 N.Y. Reg. 3 (Nov. 6, 2013). 9 It requires authorized adoption
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.
18 NYCRR § 421.3(d).
In promulgating this provision, OCFS stated that the
regulation would “promote fairness and equality in the child welfare
adoption program by eliminating archaic regulatory language that
implies the sexual orientation of gay, lesbian and bisexual prospective
adoptive parents—but not of heterosexual prospective adoptive
918 NYCRR § 421 concerns “Standards of Practice for Adoption Services.” Section
421.3 lists “General Requirements.” At the time of the proposed amendment, the
provision required adoption agencies (a) to have written policies and procedures;
(b) to make provisions for those policies to be available and provide them to
parents, adoptive applicants, and legal guardians; and (c) to maintain appropriate
records.
20
parents—is relevant to evaluating their appropriateness as adoptive
parents.” 35 N.Y. Reg. 4 (Aug. 7, 2013) (proposed rulemaking). 10
B. New Hope’s Adoption Services
New Hope’s Christian ministry was conceived by clergyman
Clinton H. Tasker who, in 1958, sensed a “call of God” to care for
women facing unplanned pregnancies and for their children.11
Compl. ¶ 40. Tasker’s idea was realized in 1965, when Evangelical
Family Service, Inc.—New Hope’s predecessor agency—sought and
obtained from New York’s Board of Social Welfare a two-year
certificate of incorporation authorizing it “to accept legal custody and
guardianship of children; to provide protective service for children;
to provide foster care service to child[ren] and unwed mother[s]; to
place children for adoption; and [to] function in complete cooperation
with all existing social welfare agencies.” J. App’x at 66; see N.Y. Soc.
10In opposing New Hope’s motion for a preliminary injunction in this litigation,
OCFS assigned three other purposes to 18 NYCRR § 421.3(d): (1) it helps “provide
a broad and diverse pool of adoptive parents” and “maximizes the number of
prospective adoptive parents who may be assessed”; (2) it “seeks to prevent the
trauma and social harm caused by discrimination against [LGBTQ] people” and
“provides support and affirmation to LGBTQ youth awaiting an adoptive
placement”; and (3) it reinforces “the State[’s] . . . strong interest in preventing
discrimination in the provision of government services.” J. App’x at 168–69
(McCarthy Decl.).
11 New Hope traces the long tradition of Christian adoption ministries to the
following biblical passage: “Religion that God our Father accepts as pure and
faultless is this: to look after orphans and widows in their distress.” James 1:27
(quoted in Compl. ¶ 35).
21
Serv. Law § 371(10)(a). Two years later, in 1967, New York made the
certificate “perpetual.” J. App’x at 73–76. 12 Thus, when in a 2008
letter, OCFS—as successor to the Board of Social Welfare—traced
New Hope’s authorization history, it confirmed that New Hope’s
“authority to place children for adoption and to perform other
adoption services, including home studies . . . in New York is
perpetual.” Id. at 79.
New Hope maintains that its “Christian faith and religious
beliefs motivate and permeate its mission and all of its activities.”
Compl. ¶ 52. In defending dismissal, OCFS does not contend
otherwise, nor does it challenge the sincerity of New Hope’s religious
beliefs.
Consistent with its religious identity, New Hope requires all
board members, staff, and volunteers to “be in agreement with and
sign New Hope’s statement of faith, . . . be in agreement with and
supportive of [its] religious mission, and . . . conduct themselves
consistent with Christian faith and belief.” Id. ¶ 53. Moreover, “to
scrupulously ensure its autonomy to operate in accordance with its
religious beliefs, New Hope accepts no government funding.” Id.
¶ 51.
12See N.Y. Bus. Corp. Law § 202(a)(1) (“Each corporation, subject to any limitations
provided in this chapter or any other statute of this state or its certificate of
incorporation, shall have power in furtherance of its purposes . . . [t]o have
perpetual duration.”).
22
New Hope asserts that its religious beliefs prompt it to conduct
its adoption ministry in such a way as to convey a “system of values
about life, marriage, family and sexuality to both birthparents and
adoptive parents.” Id. ¶ 270. Thus, when prospective parents attend
an initial orientation session, “New Hope . . . open[s] the meeting with
prayer, . . . provid[es] information about the organization’s history
and religious mission,” and uses “scripture passages” to explain that
“children are to be valued as gifts from God.” Id. ¶ 105.
New Hope also uses prayer and religious literature in
conducting the second, “home study,” step of the adoption process.
See id. ¶¶ 109, 111–112. During this study, a New Hope caseworker
“explore[s] the prospective adoptive parents’ experience with
children, family support, parenting philosophy, ability to parent a
child of a different race or culture, faith and religious practice, and
family dynamics, including interviews of any children in the home.”
Id. ¶ 114.
At the third step of the process, a New Hope caseworker
explores in still more detail the prospective parents’ “strengths and
weaknesses,” their “family dynamics, thoughts on discipline and
affection, work responsibilities, marital stability . . . , mental-health
history, financial stability, and parenting philosophy.” Id. ¶ 117.
Married couples are interviewed together and separately to
determine the “intimacy and strength of the marriage” in order to
ensure that their home “will be a safe, stable environment for the
[adopted] child.” Id. ¶¶ 116, 118, 120.
23
Following this session, the caseworker and New Hope’s
Executive Director together review the entire case file to decide
whether to approve or disapprove applicants as prospective adoptive
parents based on “the best interest of any child who may be placed in
the home.” Id. ¶ 121.
Approved adoptive parents then participate in the fourth step
of the process where, among other things, New Hope instructs them
as to how to prepare their “profiles.” New Hope shows
approximately five such profiles to a birthmother for her to “select the
adoptive family with whom she feels comfortable entrusting her
child.” Id. ¶¶ 66, 97, 125. New Hope states that “[a]ll” birthmothers
with whom it has worked “have been able to find a family with whom
they were comfortable placing their child for adoption from the
profiles” thus provided. Id. ¶ 99.
At the fourth step, New Hope also asks approved adoptive
parents whether they are willing to participate in “open adoptions,”
i.e., adoptions where birth parents maintain some contact with the
adopted child pursuant to a “Contact Agreement” facilitated by New
Hope until the child turns 18. Because almost all New Hope’s
adoptions are “open,” its involvement in adoptions thus continues
well after a court finalizes transfer of a child’s custody. Id. ¶¶ 78–81.
Finalization does not occur, however, until after a child spends
no fewer than three months, and sometimes as much as a year, living
with approved adoptive parents under New Hope’s supervision.
During this period, New Hope maintains legal custody of the child
24
and conducts regular visits to ensure that the child is being well cared
for and to assess the degree of attachment developing between the
adoptive parents and the child. See id. ¶¶ 133–138.
New Hope’s “field reports” about the placement, together with
its home study report, are then finalized and notarized and become
its “official recommendation of the adoptive family for the adoption
of the specific child.” Id. ¶¶ 139–141.
C. New Hope’s Religious Beliefs and 18 NYCRR § 421.3(d)
The particular religious belief subscribed to by New Hope and
relevant to this appeal is that “[t]he biblical model for the family as
set out in the Bible—one man married to one woman for life for their
mutual benefit and the benefit of their children—is the ideal and
healthiest family structure for mankind and specifically for the
upbringing of children.” Id. ¶ 56. Because of this belief, New Hope
asserts that it “will not recommend or place children with unmarried
couples or same-sex couples as adoptive parents.” Id. ¶ 153. It does
not believe that such a placement is in a child’s best interests.
New Hope maintains that its religious views about marriage do
not otherwise limit its ministry. In providing pregnancy counseling,
New Hope routinely works with unmarried women and does so
without regard to their sexual orientation. But, as to adoption, New
Hope’s religious views about marriage are formalized in a “Special
Circumstances” policy, which states,
25
If the person inquiring to adopt is single . . . [t]he Executive
Director [of New Hope] will talk with them to discern if they
are truly single or if they are living together without the
benefit of marriage. . . . [B]ecause New Hope is a Christian
Ministry it will not place children with those who are living
together without the benefit of marriage.
If the person inquiring to adopt is in a marriage with a same
sex partner . . . [t]he Executive Director will . . . explain that
because New Hope is a Christian Ministry, we do not place
children with same sex couples[].
Id. ¶ 154. 13
Nevertheless, mindful that its religious beliefs are not
universal, New Hope does not itself “reject” unmarried or same-sex
couples as adoptive parents. See supra at 14 (discussing rejection of
adoption applicants). Rather, it effectively recuses itself from
considering their adoption applications, referring them at the outset
to “the appropriate county social services office or another
[authorized adoption services] provider.” Id. ¶ 156. New Hope
asserts on information and belief that “no same-sex couple or
unmarried couple who has inquired with New Hope about adoption
has ever complained to OCFS about how New Hope handled their
inquiry.” Id. Nor is there anything in the present record indicating
13While it appears that New Hope’s religious view of marriage has remained
constant throughout its history, it is not clear from the record exactly when this
policy was committed to writing.
26
that New Hope’s policy has prevented any same-sex or unmarried
couple wishing to adopt from doing so.
OCFS appears not to have questioned New Hope’s practice
respecting unmarried and same-sex couples until 2018 when,
pursuant to what OCFS characterized as a “new policy” implemented
that year, it conducted a “comprehensive on-site review[] of each
private provider’s procedures.” Id. ¶ 182. 14 In advance of a
September 6, 2018 site review of New Hope, OCFS Permanency
Specialist Suzanne Colligan requested, and New Hope’s then-Acting
Executive Director Judith Geyer provided, a copy of New Hope’s
policies and procedures manual, which included the above-quoted
Special Circumstances policy.
Approximately one month after the site visit, on October 1,
2018, Colligan sent Geyer a review letter issued by OCFS’s Regional
Director for Child Welfare and Community Services. That letter
commends New Hope for “a number of strengths” in providing
adoption services, specifically, (1) “the strong emphasis [placed] on
assisting the birth parents in making an informed decision for their
newborn,” (2) “providing them time to make the [adoption]
decision,” and—perhaps most notably for purposes of this appeal—
(3) “a supportive and detailed adoptive family selection process.” Id.,
Exh. 6. It identifies only three areas for follow-up: (1) “[i]mmediate
implementation” of OCFS’s “Foster/Adoptive Home Certification
14The record does not indicate the impetus for this new policy or detail how it
departs from previous practice.
27
Approval Process,” (2) better procurement of health information
pertaining to adoptive families, the adoptee, or birth parent; and (3)
New Hope’s role and limitations regarding the exchange of
information pertinent to surrender of custody. Id. The review letter
makes no mention of New Hope’s Special Circumstances policy or of
18 NYCRR § 421.3(d).
A week later, however, in an October 9, 2018 telephone call to
Geyer, Colligan stated that she had read New Hope’s manual, and
that its Special Circumstances policy violated § 421.3(d). Colligan
presented New Hope with two options: comply with the regulation
by agreeing to place children with unmarried and same-sex couples,
or “choos[e] to close.” Id. ¶¶ 188–190. Geyer responded that New
Hope was unwilling to violate its religious beliefs by placing children
with unmarried or same-sex couples, and that it would “never choose
to close.” Id. ¶¶ 191, 193. Rather, OCFS would be “forcing” New
Hope to close in violation of its religious freedom. Id. ¶ 193. Colligan
told Geyer that “[s]ome Christian ministries have decided to
compromise and stay open.” Id. ¶ 192 (brackets in original). 15
15 As evidence that OCFS forced religious adoption agencies that did not
compromise their beliefs to close, New Hope points to the 2018 disappearance of
a number of religious authorized adoption agencies from OCFS’s website. See
Compl. ¶ 202. It also observes that in a Buffalo News report about Catholic Charities
Buffalo ending its 95-year history of adoption and foster care services, an OCFS
spokeswoman is quoted as saying, “[d]iscrimination of any kind is illegal and in
this case OCFS will vigorously enforce the laws designed to protect the rights of
children and same sex couples. In New York State, we welcome all families who
are ready to provide loving and nurturing homes to foster or adoptive children.
28
On October 11, 2018, Colligan advised Geyer that New Hope
would be receiving a letter requesting a formal written response to
the choices it had been given. The referenced letter from Laura Velez,
Deputy Commissioner of Child Welfare and Community Services,
states that New Hope’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.” Id., Exh. 7. The letter requests
that “within 15 days of receipt of this letter,” New Hope state in
writing whether it will or will not “revise the policy so as to comply
with the above-cited regulation” and, thus, “continue the existing
adoption program.” Id. It advises that should New Hope “fail to
bring the policy into compliance with the regulation, OCFS will be
unable to approve continuation of [New Hope’s] current adoption
program and [New Hope] will be required to submit a close-out plan
for the adoption program.” Id.
D. Procedural History
Rather than accept either of OCFS’s options, New Hope
commenced this action on December 6, 2018. On December 12, 2018,
it moved preliminarily to enjoin OCFS from forcing the closure of
New Hope’s adoption services. OCFS opposed the motion, and on
There is no place for providers that choose not to follow the law.” Id. ¶ 204
(quoting Stephen T. Watson & Harold McNeil, Catholic Charities Ending Foster,
Adoption Programs Over Same-Sex Marriage Rule, BUFFALO NEWS, August 23, 2018).
29
January 14, 2019, moved to dismiss New Hope’s complaint pursuant
to Fed. R. Civ. P. 12(b)(6).
Following oral argument, the district court granted OCFS’s
motion to dismiss and denied New Hope’s motion for a preliminary
injunction as moot. See New Hope Family Servs., Inc. v. Poole, 387 F.
Supp. 3d 194. The district court ruled that New Hope failed to state a
plausible Free Exercise claim because 18 NYCRR § 421.3(d) is “[o]n its
face . . . generally applicable and . . . neutral,” and no evidence
indicated that the regulation “was drafted or enacted with the object
to infringe upon or restrict practices because of their religious
motivation.” Id. at 213–14 (internal quotation marks omitted). The
district court ruled that New Hope failed to state a plausible Free
Speech claim because § 421.3(d) “simply do[es] not compel speech,”
or only compels “government[] speech.” Id. at 217. Insofar as New
Hope also cast its Free Speech claim as one of “expressive
association,” the district court ruled that § 421.3(d) caused only “slight
impairment to New Hope’s expressive activity,” which, in any event,
was outweighed by “the state’s compelling interest in prohibiting the
discrimination at issue.” Id. at 219–20. 16
16In granting dismissal, the district court observed that “OCFS does not contend
that New Hope is not acting in the best interests of the children” it places for
adoption, New Hope Family Servs. v. Poole, 387 F. Supp. 3d at 224, and expressed
regret that the parties had not themselves been able to reach some accommodation:
Until recent events, the parties have had a fruitful relationship; a
relationship that has benefitted New York’s children in immeasurable
ways. For this reason, the Court would prefer that the parties seek out
30
New Hope timely filed this appeal, moving for a preliminary
injunction that would allow it, pending a final ruling by this court, to
continue servicing pending adoptions subject to New Hope’s
agreement not to accept any new adoption applications. This court
granted such an injunction on November 4, 2019. On June 18, 2020,
New Hope moved for this court to expand its injunction pending
appeal to allow New Hope to accept new adoption applications.
Discussion
A. Motion To Dismiss
1. Standard of Review
We review de novo the dismissal of a complaint for failure to
state a claim. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d at 110. In
doing so, we “accept[] all factual allegations in the complaint as true,
and draw[] all reasonable inferences in the plaintiff’s favor.” Shomo
v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation
marks omitted); accord DiFolco v. MSNBC Cable L.L.C., 622 F.3d at 111
(“When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” (emphasis in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009))).
some compromise to their current dispute without further judicial
intervention . . . to avoid what may appear . . . to be harsh legal results.
Id. at 225 (internal quotation marks omitted).
31
2. Free Exercise Claim
New Hope argues that the district court erred in concluding
that it failed to plead a plausible Free Exercise claim against OCFS.
Specifically, New Hope challenges the district court’s determination
that OCFS was simply enforcing a neutral and generally applicable
anti-discrimination regulation when it insisted that New Hope either
agree to approve unmarried and same-sex applicants for adoption or
close its adoption service. For reasons explained herein, we conclude
that the dismissal of New Hope’s Free Exercise claim was premature.
The pleadings allege that OCFS’s actions preclude New Hope from
pursuing its adoption ministry consistent with its religious beliefs.
Even if such intrusion on the exercise of religion would not violate the
First Amendment if compelled by a valid and neutral law (or
regulation) of general application, the pleadings here, when viewed
in the light most favorable to New Hope, do not permit a court to
conclude, as a matter of law, that OCFS’s actions in promulgating and
enforcing the regulation at issue were neutral and not informed by
hostility toward certain religious beliefs.
a. Applicable Legal Principles
To explain that conclusion, we start with the First Amendment,
which famously states that “Congress shall make no law respecting
an establishment of religion, or preventing the free exercise thereof
. . . .” U.S. CONST. amend. I. The Fourteenth Amendment extends the
protections of these Establishment and Free Exercise Clauses against
32
state and local governments. See U.S. CONST. amend. XIV; Cantwell v.
Connecticut, 310 U.S. 296, 303 (1940).
As the Supreme Court reiterated only last term, “[t]he Religion
Clauses of the Constitution aim to foster a society in which people of
all beliefs can live together harmoniously,” not a society devoid of
religious beliefs and symbols. American Legion v. Am. Humanist Assoc.,
139 S. Ct. 2067, 2074 (2019); see also County of Allegheny v. ACLU, 492
U.S. 573, 623 (1989) (O’Connor, J., concurring in part and concurring
in the judgment) (observing that First Amendment does not require
courts to “sweep away all government recognition and
acknowledgment of the role of religion”). The Free Exercise Clause,
in particular, guarantees to all Americans the “right to believe and
profess whatever religious doctrine [they] desire[],” even doctrines
out of favor with a majority of fellow citizens. Employment Div. v.
Smith, 494 U.S. 872, 877 (1990). Thus, it has long been the rule—as
famously pronounced by Justice Jackson—that no government
“official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion.” West Va.
Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943); accord Masterpiece
Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018).
Rather, “[t]he Constitution commits government itself to religious
tolerance, and upon even slight suspicion that proposals for state
intervention stem from animosity to religion or distrust of its
practices, all officials must pause to remember their own high duty to
the Constitution and to the rights it secures.” Masterpiece Cakeshop v.
33
Colo. Civil Rights Comm’n, 138 S. Ct. at 1731 (internal quotation marks
omitted).
These principles are particularly relevant to beliefs about
family and marriage, where society’s views have sometimes proved
more fluid than religion’s. As pertinent here, the Supreme Court
recently traced how society’s view of same-sex marriage has evolved
over the last forty years, such that what was once prosecuted as a
criminal offense is now recognized as a fundamental right. See
Obergefell v. Hodges, 135 S. Ct. 2584, 2596–605 (2015). Nevertheless,
some religions maintain that same-sex marriage is morally wrong,
just as some religions view unmarried co-habitation, remarriage after
divorce, or conception without marriage as morally wrong
notwithstanding society’s general acceptance of such conduct. The
Supreme Court has declined to fault such religious views about
marriage, observing that “[m]any who deem same-sex marriage to be
wrong reach that conclusion based on decent and honorable religious
or philosophical premises, and neither they nor their beliefs are
disparaged here.” Id. at 2602. Indeed, the Court has suggested that
differing secular and religious views in this area should be allowed to
coexist. This is evident from the fact that, at the same time that the
Court ruled that the Constitution does not permit government to
prohibit same-sex marriage, it “emphasized that religions, and those
who adhere to religious doctrines, may continue to advocate with
utmost, sincere conviction that, by divine precepts, same-sex
marriage should not be condoned.” Id. at 2607. Indeed, such
advocacy is constitutionally protected:
34
The First Amendment ensures that religious
organizations and persons are given proper protection as
they seek to teach the principles that are so fulfilling and
so central to their lives and faiths, and to their own deep
aspirations to continue the family structure they have
long revered.
Id. The Court reiterated the point the next year: “[R]eligious and
philosophical objections to gay marriage are protected views and in
some instances protected forms of expression.” Masterpiece Cakeshop
v. Colo. Civil Rights Comm’n, 138 S. Ct. at 1727; cf. Bostock v. Clayton
Cty., 140 S. Ct. 1731, 1753–54 (2020) (construing Title VII of Civil
Rights Act of 1964, 42 U.S.C. § 2000e–2(a)(1), to prohibit
discrimination on the basis of sexual orientation, but recognizing fear
that compliance “may require some employers to violate their
religious convictions” and expressing “deep[] concern[] with
preserving the promise of the free exercise of religion enshrined in
our Constitution”).
But if some accommodation on this matter is the Court’s
expectation, delineating constitutional boundaries is challenging. As
the Chief Justice observed in Obergefell, anticipating the very case now
before us, “[h]ard questions arise when people of faith exercise
religion in ways that may be seen to conflict with the new right to
same-sex marriage—when, for example, . . . a religious adoption
agency declines to place children with same-sex married couples.”
Obergefell v. Hodges, 135 S. Ct. at 2525–26 (Roberts, C.J., joined by Scalia
and Thomas, JJ., dissenting).
35
In confronting those hard questions here, we are mindful that
the Supreme Court has recognized that the exercise of religion can
involve not only belief and expression, but also “physical acts,” such
as “assembling with others for a worship service, participating in
sacramental use of bread and wine, proselytizing, abstaining from
certain foods or certain modes of transportation.” Employment Div. v.
Smith, 494 U.S. at 877. The Free Exercise Clause does not permit
government to “ban such acts or abstentions only when they are
engaged in for religious reasons, or only because of the religious belief
that they display,” id., at least not without showing that the ban “is
justified by a compelling interest and is narrowly tailored to advance
that interest,” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah
(“Lukumi v. Hialeah”), 508 U.S. 520, 533 (1993). But the law has
permitted government to avoid showing a compelling interest and
narrow tailoring if the challenged ban on a religious practice is
required by a valid and neutral law of general applicability.
Employment Div. v. Smith, 494 U.S. at 879 (stating that Free Exercise
Clause does “not relieve an individual of the obligation to comply
with a valid and neutral law of general applicability on the ground
that the law proscribes (or prescribes) conduct that his religion
prescribes (or proscribes)” (internal quotation marks omitted)).
Almost from its pronouncement, Smith’s construction of the
Free Exercise Clause has prompted criticism. See, e.g., Michael W.
McConnell, The Origins and Historical Understanding of Free Exercise of
Religion, 103 HARV. L. REV. 1409, 1420 & n.43 (1990); see also Kennedy v.
Bremerton Sch. Dist., 139 S. Ct. 634, 637 (2019) (Alito, J., joined by
36
Thomas, Gorsuch, and Kavanaugh, JJ., concurring in denial of
certiorari) (observing that case did not ask Court to revisit Employment
Division v. Smith, which “drastically cut back on the protection
provided by the Free Exercise Clause”). The Supreme Court has
recently agreed to revisit its decision in Smith, with argument
expected some time next term. See Fulton v. City of Philadelphia, 140 S.
Ct. 1104 (Feb. 24, 2020) (mem.). We need not delay deciding this case,
however, to see if Fulton yields a more protective Free Exercise
standard than Smith because we conclude that New Hope’s Free
Exercise claim should not have been dismissed even under the Smith
standard as presently applied. A court construing the pleadings in
the light most favorable to New Hope could not conclude as a matter
of law that OCFS was simply applying a valid neutral law of general
application when it instructed New Hope either to agree to approve
unmarried and same-sex couples as adoptive parents or to close its
50-year adoption ministry.
The Supreme Court has instructed that a law is not neutral if its
object “is to infringe upon or restrict practices because of their
religious motivation.” Lukumi v. Hialeah, 508 U.S. at 533. To
determine the object of a law, a court “begin[s] with its text, for the
minimum requirement of neutrality is that a law not discriminate on
its face” against religion. Id. Like the district court, we conclude that
the regulation here at issue, 18 NYCRR § 421.3(d), does not on its face
discriminate against religion because its prohibitions apply equally to
all adoption services, both secular and religious.
37
But facial neutrality is only the first, and by no means the
determinative, step in a Free Exercise inquiry. See Lukumi v. Hialeah,
508 U.S. at 534. Mindful that government hostility to religion can be
“masked, as well as overt,” a court must proceed to a second step of
inquiry to identify even those “subtle departures from neutrality,” or
“covert suppression of particular religious beliefs” that will be not be
tolerated unless supported by a compelling interest and narrow
tailoring. Id. at 534, 546 (internal quotation marks omitted); accord
Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. at 1731. At
this second step, a court must “survey meticulously” the totality of
the evidence, “both direct and circumstantial.” It must consider “the
historical background of the decision under challenge, the specific
series of events leading to the enactment or official policy in question,
and the legislative or administrative history, including
contemporaneous statements made by members of the
decisionmaking body.” Lukumi v. Hialeah, 508 U.S. at 534, 540
(internal quotation marks omitted); accord Masterpiece Cakeshop v. Colo.
Civil Rights Comm’n, 138 S. Ct. at 1731. It must also carefully consider
“the effect of a law in its real operation,” which “is strong evidence of
its object.” Lukumi v. Hialeah, 508 U.S. at 535.
Applying those principles here, we conclude that the pleadings
give rise to a sufficient “suspicion” of religious animosity to warrant
“pause” for discovery before dismissing New Hope’s claim as
implausible. Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, 138 S.
Ct. at 1731.
38
b. The District Court’s Cited Authorities Do
Not Support Dismissal
New Hope maintains that the following pleadings indicate that
18 NYCRR § 421.3(d), as promulgated and enforced, is not neutral and
generally applicable.
(1) Amended Dom. Rel. Law § 110—the law OCFS contends 18
NYCRR § 421.3(d) “is consistent with” and “implements,”
Appellee Br. at 6–7—is permissive, not mandatory.
Moreover, New York’s then-Governor, in signing the law,
specifically stated that it “allow[s] for . . . adoptions [by
unmarried and same-sex couples] without compelling any
agency to alter its present policies.” Compl. ¶ 7.
(2) Initially, OCFS took the position that amended § 110 “does
not change or alter the standards currently in place for the
approval of an individual as an adoptive parent.” Id. ¶ 162.
(3) OCFS then shifted its position. Despite the Governor’s
statement that the amended statute did not require agencies
to “alter [their] present policies,” OCFS asserted that it
“cannot contemplate any case where the issue of sexual
orientation would be a legitimate basis, whether in whole or
in part, to deny the application of a person to be an adoptive
parent.” Id. ¶ 164.
(4) During the rulemaking process preceding promulgation of
18 NYCRR § 421.3(d), OCFS stated that the regulation was
needed to “eliminate archaic regulatory language, which
39
implies that the sexual orientation of gay, lesbian and
bisexual prospective parents . . . is relevant to evaluating
their appropriateness as adoptive parents.” Id. ¶ 166
(emphasis in original).
(5) When New Hope told OCFS that its comply-or-close order
violated New Hope’s freedom of religion, OCFS told the
agency that “some Christian ministries have decided to
compromise and stay open.” Id. ¶ 192 (brackets removed).
(6) Since § 421.3(d) took effect, “several voluntary faith-based
authorized [adoption] agencies that were listed on OCFS’[s]
website in January of 2018” and that “share similar beliefs”
to New Hope’s “have been removed by OCFS from that
posted list.” These include “several Catholic providers, a
Jewish provider, an LDS provider, and a Muslim provider.”
Id. ¶¶ 202–203.
(7) In a 2018 news report about the closure of a Christian
adoption ministry operating for 95 years in Buffalo, New
York, an OCFS spokeswoman is quoted stating that
“[d]iscrimination of any kind is illegal . . . . There is no place
for providers that choose not to follow the law.” Id. ¶ 204.
(8) The State’s statutory and regulatory scheme governing
adoption “provides exemptions for secular, nonreligious
purposes” and “allow[s] adoption providers to consider
protected characteristics when making placements,” while
40
imposing an “absolute bar” against consideration of sexual
orientation. Id. ¶¶ 248–250.
In concluding that these allegations were insufficient to state a
plausible Free Exercise claim, the district court observed that the
allegations did not indicate “[the] type of hostility or bias
demonstrated in Masterpiece Cakeshop or Lukumi.” New Hope Family
Servs., Inc. v. Poole, 387 F. Supp. 3d at 214. Instead, the district court
thought that New Hope’s pleadings “more closely align with Fulton
[v. City of Philadelphia, 922 F.3d 140 (3d Cir. 2019), cert. granted, 140 S.
Ct. 1104, see supra at 37], where the Third Circuit found that the
plaintiff was unlikely to succeed on its claim because the record
demonstrated that the defendant respected the plaintiff’s sincerely
held beliefs while enforcing the anti-discrimination provision at
issue.” Id.
We cannot agree. At first glance, Fulton may appear similar to
this case in that, there, a religious foster care agency, Catholic Social
Services (“CSS”), claimed that a government entity, the City of
Philadelphia, violated its Free Exercise and Free Speech rights by
insisting that CSS not discriminate against same-sex couples as a
condition of its continuing to provide foster care services. But, in fact,
this case differs from Fulton in ways important to our review.
First, the relationship between CSS and Philadelphia was
contractual and compensatory. See Fulton v. City of Philadelphia, 922
F.3d at 147–48 (discussing contract between Philadelphia and CSS,
which provided for City to compensate CSS for certain services at per
41
diem rate for each child placed in foster care). By contrast, while New
Hope is authorized by New York to provide adoption services, it does
not do so pursuant to any government contract, nor does it receive
any government funding. Thus, whatever authority a government
entity might claim to limit the free exercise of religion by those who
become its agents or accept its funding, no such authority can be
claimed here.
Second, in Fulton, the issue under review was not the
sufficiency of the pleadings, but the denial of CSS’s motion for a
preliminary injunction. To secure such relief, CSS had to demonstrate
a reasonable likelihood of success on its Free Exercise claim, a heavier
burden than New Hope bears in pleading the plausible claim
necessary to avoid dismissal. See id. at 151–52. The Third Circuit
agreed with the district court that CSS failed to carry its burden “at
the preliminary injunction stage” under the Smith standard. Id. at
158–59. Whether or not this ruling survives Supreme Court review,
what is important here is that in making it, the Fulton courts were not
required to accept all CSS’s allegations as true or to draw all
reasonable inferences in its favor. Compare id. at 152 (setting forth
preliminary injunction standard), with Shomo v. City of New York, 579
F.3d at 183 (stating motion to dismiss standard). Nowhere in Fulton
does the Third Circuit suggest that CSS’s allegations, if assumed true,
were insufficient to state a Free Exercise claim. 17
17This case also differs from Fulton in that OCFS does not identify New Hope as a
“public accommodation,” see Fulton v. City of Philadelphia, 320 F. Supp. 3d 661, 678–
42
As for Masterpiece Cakeshop and Lukumi, the Supreme Court
there discussed Free Exercise violations based on fully developed
evidentiary records. See Masterpiece Cakeshop v. Colo. Civil Rights
Comm’n, 138 S. Ct. at 1726 (reviewing rulings made on cross-motions
for summary judgment); Lukumi v. Hialeah, 508 U.S. at 528 (reviewing
findings of fact and conclusions of law following nine-day bench
trial). Where, as here, the parties have not yet commenced discovery,
New Hope can hardly be required to plead facts as specific and
detailed as those referenced in Masterpiece Cakeshop and Lukumi to
avoid dismissal.
c. The Pleadings Raise a Plausible Suspicion
of Hostility to Certain Religious Beliefs
In any event, New Hope’s pleadings easily give rise to the
“slight suspicion” of religious animosity that the Supreme Court, in
both Lukumi and Masterpiece Cakeshop, indicated could raise
constitutional concern. Lukumi v. Hialeah, 508 U.S. at 547; Masterpiece
Cakeshop v. Colo. Civil Rights Comm’n, 138 S. Ct. at 1731. In explaining
this conclusion, we are obliged to discuss certain pleadings
individually, but it is the totality that precludes dismissal.
First, suspicion is raised by an apparent disconnect between 18
NYCRR § 421.3(d) and the law it purports to implement, N.Y. Dom.
Rel. Law § 110. As New Hope correctly observes, the statutory text is
permissive, expanding the persons who “may adopt” to include
79 (E.D. Pa. 2018) (identifying CSS foster care services as such), aff’d on other
grounds, 922 F.3d 140, a point we discuss further infra at 46.
43
unmarried and same-sex couples. It contains no mandate requiring
adoption agencies to approve adoption by any persons. Moreover,
the wording choice appears to have been deliberate, and even
intended to allow for accommodation of religious beliefs. This can be
inferred from § 110’s enactment history. In a letter to the Governor
that is included in the bill jacket, the New York State Catholic
Conference voiced concern that the new legislation might be
construed to require faith-based adoption agencies “to facilitate
adoption for same-sex [couples] in violation of our religious beliefs
and faith.” Ltr. from N.Y.S. Catholic Conf. to Governor (July 29, 2010),
New York Bill Jacket, 2010 S.B. 1523, ch. 509. The letter urged an
amendment to ensure that authorization certifications were not
denied or revoked on that ground. See id. The enacted law contained
no such amendment, but the Governor, in his signing statement,
sought to assuage concern. He explained that the statutory text was
permissive, i.e., it allowed adoptions by more persons than before, but
“without compelling any agency to alter its present policies.” Gov. Mem.,
New York Bill Jacket, 2010 S.B. 1523, ch. 509 (emphasis added).
Indeed, the Governor stated that the law was “a wise, just and
compassionate measure that expands the rights of New Yorkers,
without in any way treading on the views of any citizen or organization.”
Id. (emphasis added). In short, the statutory text and history, viewed
in the light most favorable to New Hope, can reasonably be construed
to have alerted OCFS that what the legislature and executive intended
in amending § 110 was to expand the class of potential adoptive
parents to include unmarried and same-sex couples, but with
44
reasonable accommodation for religious adoption agencies whose
faiths compelled narrower views. 18
Section 421.3(d) is not consistent with this intent. Its language
is not permissive, but mandatory. It unqualifiedly prohibits any
“discrimination and harassment” against adoption applicants based
on “race, creed, color, national origin, age, sex, sexual orientation,
gender identity or expression, marital status, religion, or disability.”
18 NYCRR § 421.3(d) (emphases added). Of course, OCFS has wide
discretion in promulgating regulations setting forth the “standards
and procedures to be followed by authorized agencies in evaluating”
adoption applicants. N.Y. Soc. Serv. Law § 372-e(2). And a generally
applicable anti-discrimination regulation will usually be understood
to indicate neutrality rather than religious animosity. But where, as
here, a regulation purports to implement a statute whose text and
history signal an intent for some accommodation of religious beliefs,
further inquiry is warranted to determine if agency actions affording
no such accommodation are grounded in any animosity to the
particular religious beliefs at issue.
Second, a suspicion of religious animosity is further raised here
by the fact that for five years after 18 NYCRR § 421.3(d) was
promulgated—from 2013 until 2018—OCFS voiced no objection to the
practice New Hope appears to have adopted to avoid being seen as
18Gubernatorial signing statements are routinely relied on in construing the reach
of New York statutes. See, e.g., People v. Cagle, 7 N.Y.3d 647, 651 (2006); Greer v.
Wing, 95 N.Y.2d 676, 680–81 (2001).
45
“discriminat[ing]” against unmarried or same-sex couples wishing to
adopt, i.e., New Hope recused itself from considering such couples’
adoption applications and referred them to other agencies whose
consideration would not be limited by New Hope’s particular
religious beliefs about family and marriage.
To be sure, New Hope’s recusal policy meant that unmarried
and same-sex couples could not obtain adoption services from New
Hope. We need not here consider what discrimination concerns this
might raise if New Hope qualified as a public accommodation under
New York law, see N.Y. Exec. Law §§ 292(9), 296, because OCFS does
not attempt formally to denominate it as such. This is not surprising.
New Hope’s adoption services are not easily analogized to traditional
public accommodations such as barbershops that provide haircuts,
accounting firms that offer tax advice, or bakeshops that make
wedding cakes. And children awaiting adoption hardly equate to a
commodity, even if their “supply” in New York (unfortunately)
greatly exceeds “demand.” Moreover, it appears that an authorized
agency offers adoption services not only for the benefit of a public
clientele (prospective parents) but, also, so that the agency itself can
render a judgment: whether it is in the best interests of a child to be
adopted by a particular applicant or applicants. Recusal is a familiar
and accepted way for decisionmakers to step aside when they
recognize that personal interest, predispositions, or even religious
beliefs might unduly influence (or appear to influence) their ability to
render impartial judgment. Thus, when an agency such as New Hope
knows that, although New York law allows adoption by unmarried
46
and same-sex couples, its religious beliefs will not permit it to
conclude that adoption by such a couple is in a child’s best interests,
recusal and referral might be understood as a means to avoid its
religious views adversely informing its assessment of a couple’s
particular adoption application. 19 The pleadings suggest that New
Hope’s recusal still leaves scores of other authorized agencies
available to consider the referred adoption applications. And New
Hope’s recusal would not seem to diminish the number of children
available for adoption. 20
This is not to suggest that no legal concerns can arise when a
decisionmaker uses recusal to avoid rendering judgments for
members of a protected class. We here conclude simply that, in the
circumstances described, OCFS’s abrupt—and as yet unexplained—
2018 change of mind on the matter of whether New Hope’s recusal-
and-referral practice adequately avoided violating 18 NYCRR
19See generally Ward v. Polite, 667 F.3d 727, 735 (6th Cir. 2012) (reinstating Free
Exercise and Free Speech claims of graduate student dismissed from counseling
program because, based on her religious views on homosexuality, she had sought
to refer certain gay and lesbian clients to other counselors, observing, “[t]he point
of the referral request was to avoid imposing her values on gay and lesbian clients”
(emphasis in original)).
20In its letter brief opposing New Hope’s motion to expand this court’s injunction
pending appeal, OCFS asserts that “each time New Hope accepts a new placement
request, there are fewer adoption opportunities available elsewhere,” particularly
for newborns—the focus of New Hope’s ministry—for whom there is “especially
high demand.” Appellee Ltr. Br., ECF Doc. No. 199, at 7. OCFS offers no evidence
to support this conclusion but will have the opportunity to do so on remand
during discovery.
47
§ 421.3(d), coupled with its insistence that New Hope agree to
approve unmarried and same-sex couples as adoptive parents or shut
down a 50-year adoption ministry, raise a sufficient suspicion of
hostility toward New Hope’s particular religious beliefs to warrant
further inquiry. See Lukumi v. Hialeah, 508 U.S. at 538 (stating that
where law “proscribe[s] more religious conduct than is necessary to
achieve [its] stated ends[,] [i]t is not unreasonable to infer” that such
a law “seeks not to effectuate the stated governmental interests, but
to suppress the conduct because of its religious motivation”). 21
Third, even before discovery, New Hope points to some
statements by OCFS personnel that are similar to statements in
Masterpiece Cakeshop that the Supreme Court interpreted as arguably
evincing religious hostility. Notably, New Hope asserts that when it
invoked religious freedom to protest OCFS’s directive that it either
agree to approve unmarried and same-sex adoption applicants or
close its adoption services, OCFS responded that “[s]ome Christian
ministries have decided to compromise and stay open.” Compl. ¶ 192
(brackets in original). See Masterpiece Cakeshop v. Colo. Civil Rights
Comm’n, 138 S. Ct. at 1729 (quoting statement by Colorado Civil
21Recusal and referral might also be understood to avoid another constitutional
concern—compelled speech—that could arise from OCFS using 18 NYCRR
§ 421.3(d) to compel New Hope to render adoption judgments contrary to its
religious beliefs as a condition for its continued authorization to pursue an
adoption ministry. See, e.g., Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570
U.S. 205, 213 (2013) (reiterating “basic First Amendment principle that freedom of
speech prohibits the government from telling people what they must say”
(internal quotation marks omitted)). We pursue this point further infra at 53–55,
65–70, in discussing New Hope’s Free Speech claim.
48
Rights Commissioners that businessman who “wants to do business
in the state and he’s got an issue with the—the law’s impacting his
personal belief system, he needs to look at being able to compromise”
(emphasis added) (internal quotation marks omitted)). Further, when
OCFS was asked by a reporter to comment on the closure of a long-
established Christian adoption agency in Buffalo, its spokeswoman
stated that “[t]here is no place for providers that choose not to follow
the law.” Compl. ¶ 204; see Masterpiece Cakeshop v. Colo. Civil Rights
Comm’n, 138 S. Ct. at 1729 (quoting Commissioners that plaintiff “can
believe ‘what he wants to believe’ but cannot act on his religious
beliefs ‘if he decides to do business in the state’”). As in Masterpiece
Cakeshop, these statements are subject to various interpretations, some
benign. 22 But on a motion to dismiss, we must draw the inference
most favorable to New Hope, i.e., that OCFS did not think New
Hope’s religious beliefs about family and marriage could
“legitimately be carried into the public sphere.” Masterpiece Cakeshop
v. Colo. Civil Rights Comm’n, 138 S. Ct. at 1729. Indeed, for OCFS, it
was not enough that New Hope used recusal and referral to avoid
denying adoption approval to unmarried and same-sex couples based
on its own religious beliefs. Rather, for New Hope to continue its
22In Masterpiece Cakeshop, the Supreme Court acknowledged that the statements
from that case quoted here—not the most egregious at issue, see id. at 1729— might
mean “simply that a business cannot refuse to provide services based on sexual
orientation.” Id. But it observed that the statements could also be understood to
endorse the impermissible view “that religious beliefs cannot legitimately be
carried into the public sphere or commercial domain, implying that religious
beliefs and persons are less than fully welcome in Colorado’s business
community.” Id.
49
adoption ministry in New York, OCFS insisted that it
“compromise”—i.e., abandon—its own religious views about family
and marriage and subscribe to the state’s orthodoxy on such matters.
See generally West Va. Bd. of Educ. v. Barnette, 319 U.S. at 642.
Construed in this light, the allegations cannot be dismissed for failing
to state a plausible Free Exercise claim.
Fourth, another matter bearing on religious hostility and
making dismissal premature is the severity of OCFS’s actions in
ordering New Hope’s closure. 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. All the more
serious when, as just discussed, the agency has, for five years and
without objection by OCFS, used recusal and referral to avoid
rejecting applicants on the basis of its religious beliefs. A court
properly starts by asking what authority OCFS had to order such a
shut down, and what procedures attend such a decision. There may
be clear answers for these questions, but they are not apparent on the
present record.
New York Soc. Serv. Law § 371(10)(a) authorizes OCFS to
“visit[], inspect[] and supervise[]” adoption agencies. Thus, OCFS
was well within its authority in visiting and inspecting New Hope in
2018. But § 371(10)(a) makes no mention of closing adoption agencies
or invalidating the certificates of incorporation authorizing them to
provide adoption services. C.f. N.Y. Bus. Corp. Law § 109(a)(1), (2)
50
(empowering Attorney General to maintain action to dissolve
corporation). And while N.Y. Soc. Serv. Law § 385 does authorize
OCFS to issue an order prohibiting an authorized agency from
“thereafter placing out or boarding out any child,” that authority is
limited to four circumstances: where OCFS determines that a child
was placed (1) for “gain,” (2) “without due inquiry as to the character
and reputation of the person with whom such child is placed,” (3) “in
such manner that such child is subjected to cruel or improper
treatment or neglect or immoral surroundings,” or (4) “in such
manner that the religious faith of the child is not preserved and
protected” as provided by law. N.Y. Soc. Serv. Law § 385(1). None
of these circumstances obtains here. To the contrary, in October 2018,
OCFS commended New Hope for its “supportive and detailed
adoptive family selection process.” J. App’x at 84.
In response to an inquiry from this court as to the source of its
authority to order New Hope’s closure, OCFS cites N.Y. Soc. Serv.
Law § 34(3)(e), which authorizes the agency to “enforce,” inter alia,
laws and regulations pertaining to adoption. But nothing in that
section, or any other authority cited by OCFS, indicates the scope of
the enforcement authority conferred by § 34(3)(e), specifically,
whether OCFS’s enforcement authority is akin to that of police and
prosecutors, who investigate and charge violators, or whether it also
extends to judicial-like authority to prescribe the punishment for
violations, specifically, the punishment of closure.
We do not here decide whether OCFS’s closure authority
reaches further than that expressly afforded by N.Y. Soc. Serv. Law
51
§ 385(1). We conclude only that until the source of any broader
authority is identified and considered in light of the circumstances of
this case, the severity of OCFS’s comply-or-close decision adds some
weight to New Hope’s claim of hostility toward its religious beliefs.
Fifth, New Hope asserts that OCFS’s 2018 actions in enforcing
18 NYCRR § 421.3(d) has forced the closure of several other adoption
agencies sharing its religious beliefs about family and marriage. This
warrants further inquiry because “the effect of a law in its real
operation” can be “strong evidence of its object.” Lukumi v. Hialeah,
508 U.S. at 535. If we assume, as we must on dismissal, that the effect
of OCFS’s comply-or-close method for enforcing § 421.3(d) fell almost
exclusively on adoption services holding particular religious beliefs,
that is some reason to suspect that the object of the law was to target
those beliefs and to exclude those who maintain them from the
adoption process. This suspicion is reinforced by circumstances,
already discussed, indicating OCFS’s awareness (at the pleadings
stage) (1) that neither the state legislature nor executive intended for
adoption agencies to have to compromise religious beliefs in order to
continue operating in the state, and (2) that recusal and referral were
available means for agencies to avoid having their religious beliefs
adversely affect the adoption applications of unmarried and same-sex
couples.
In sum, the pleadings, if accepted as true and viewed in the
light most favorable to New Hope, do not permit a court to conclude
as a matter of law that 18 NYCRR § 421.3(d), as promulgated and
enforced by OCFS, was neutral and not based on some hostility to
52
New Hope’s religious beliefs. Thus, dismissal of New Hope’s Free
Exercise claim was premature. The matter warrants discovery.
3. Free Speech Claim
New Hope claims that OCFS also violated its constitutional
right to Free Speech in two ways: (a) by compelling it to say
something it does not believe, i.e., that adoption by unmarried or
same-sex couples can be in the best interests of a child; and (b) by
requiring it to associate with such couples, thereby impeding New
Hope’s ability to promote its own beliefs and values about religion,
marriage, and family.
The district court dismissed the compelled speech part of this
claim on two grounds: (1) any speech at issue is “government[]
speech,” for which New Hope cannot claim First Amendment
protection; and (2) New Hope failed plausibly to plead that its speech
was being compelled in any way. These two conclusions, in turn,
informed the district court’s decision to dismiss New Hope’s
expressive association claim because it could not plausibly plead
more than “slight” injury to its expressive activities. See New Hope
Family Servs., Inc. v. Poole, 387 F. Supp. 3d at 217, 219.
For the reasons explained herein, the pleadings, viewed most
favorably to New Hope, do not permit a court to reach these
conclusions now as a matter of law.
53
a. Compelled Speech
“At the heart of the First Amendment” is the principle “that
each person should decide for himself or herself the ideas and beliefs
deserving of expression, consideration, and adherence.” Agency for
Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. at 213 (quoting Turner
Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)). Consistent with this
principle, freedom of speech means that the “government may not
prohibit the expression of an idea,” even one that society finds
“offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989);
see generally Barr v. Am. Ass’n of Political Consultants, Inc., No. 19-631,
2020 WL 3633780, at *12 (U.S. July 6, 2020) (plurality opinion)
(describing First Amendment as “a kind of Equal Protection Clause
for ideas” (internal quotation marks omitted)). For much the same
reason, government also cannot tell people that there are things “they
must say.” Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S.
at 213 (quoting Rumsfeld v. Forum for Acad. and Institutional Rights, Inc.
(“FAIR”), 547 U.S. 47, 61 (2006)); accord Janus v. Am. Fed’n of State, Cty.
& Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018) (stating that First
Amendment prevents government from “[c]ompelling individuals to
mouth support for views they find objectionable”). Thus, when
government “direct[ly] regulat[es] . . . speech” by mandating that
persons explicitly agree with government policy on a particular
54
matter, it “plainly violate[s] the First Amendment.” Agency v. Int’l
Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. at 213. 23
The pleadings here, viewed most favorably to New Hope,
plausibly charge OCFS with an impermissible direct regulation of
speech. As discussed supra at 21–25, all New Hope’s adoption
services—from counseling birthmothers, to instructing and
evaluating prospective adoptive parents, to filing its ultimate reports
with the court—are laden with speech. But, more to the point, these
services are provided so that, at their end, New Hope itself can speak
on the determinative question for any adoption: whether it would be
in the best interests of a child to be adopted by particular applicants.
New Hope asserts that, based on its religious beliefs about marriage
and family, it does not believe and, therefore, cannot state, that
adoption by unmarried or same-sex couples would ever be in the best
interests of a child. It charges OCFS with requiring it to say just that—
or to close down its voluntary, privately funded adoption ministry.
See Compl. ¶ 271 (alleging that OCFS “requires New Hope to engage
in speech and expression that it does not wish to convey—speech and
expression that violate[] its core religious beliefs—by compelling it to
23At issue in Agency for International Development was a challenged mandate that
federal funding recipients “explicitly agree with the Government’s policy to
oppose prostitution and sex trafficking.” 570 U.S. at 213. The Supreme Court
observed that if that requirement had been “enacted as a direct regulation of
speech,” it “would plainly violate the First Amendment.” Id. The Court then
proceeded to explain why the requirement violated the First Amendment even as
a funding condition. See id. at 213–18.
55
recommend same-sex couples or unmarried couples as adoptive
parents”). These pleadings are sufficient to withstand dismissal.
Moreover, neither reason cited by the district court supports a
contrary conclusion at this stage of the case.
i. Government Speech
The district court concluded that because New Hope is a state-
authorized adoption agency, any speech involved in its provision of
adoption services is “government[] speech” for which New Hope
cannot claim First Amendment protection. New Hope Family Servs.,
Inc. v. Poole, 387 F. Supp. 3d at 217 (“New Hope’s speech, to the extent
any is required when performing its services as an authorized
[adoption] agency, constitutes governmental speech. . . .”); see, e.g.,
Matal v. Tam, 137 S. Ct. 1744, 1757 (2017) (collecting cases recognizing
that Government’s own speech is exempt from First Amendment
scrutiny). The Supreme Court, however, has held that the mere fact
that government authorizes, approves, or licenses certain conduct
does not transform the speech engaged therein into government
speech. The reason is plain: “If private speech could be passed off as
government speech by simply affixing a government seal of approval,
government could silence or muffle the expression of disfavored
viewpoints.” Matal v. Tam, 137 S. Ct. at 1758 (holding that federal
registration of trademark does not make the mark government
speech); see also National Inst. of Family and Life Advocates v. Becerra, 138
S. Ct. 2361, 2375 (2018) (rejecting idea that government acquires
“unfettered power to reduce a group’s First Amendment rights by
56
simply imposing a licensing requirement”); 24 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. 484, 513 (1996) (plurality opinion) (holding
advertising limits on liquor retailers violated First Amendment,
explaining that state decision to license its liquor retailers did not
permit it to condition license on “surrender of a constitutional right”).
The district court relied primarily on two cases to support its
identification of “government[] speech” here. Both are inapt because
the speech-challenged conditions were there imposed on
government-funded services. See Legal Servs. Corp. v. Velazquez, 531
U.S. 533 (2001) (challenging federal funding condition prohibiting
legal services corporations from using funds to “challenge existing
welfare law”); Fulton v. City of Philadelphia, 320 F. Supp. 3d 661
(challenging non-discrimination provision of contract with City to
provide foster care services). 25 In Velazquez, the Supreme Court
observed that “[w]hen the government disburses public funds to private
entities to convey a governmental message, it may take legitimate and
appropriate steps to ensure that its message is neither garbled nor
distorted by the grantee.” 531 U.S. at 541 (brackets in original)
(emphasis added) (internal quotation marks omitted); see also Agency
for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. at 214 (collecting
cases recognizing that, under Spending Clause, Congress can impose
24In Becerra, the Supreme Court ruled, inter alia, that requiring a licensed
pregnancy center to provide women with notice of certain state services, including
abortion, violated the First Amendment by altering the content of the clinic’s
speech. 138 S. Ct. at 2371–76.
25 See supra at 37, 41–42 (discussing Fulton history).
57
some conditions on federal funding that it could not impose directly
without violating First Amendment). The district court in Fulton
relied on Velazquez’s quoted language in holding that Philadelphia
permissibly included a non-discrimination condition in its contract
with CSS funding a part of the organization’s foster care services. See
Fulton v. City of Philadelphia, 320 F. Supp. 3d at 696–97. The reasoning
of these cases does not apply here because New Hope receives no
government funding, either by way of a grant program or a contract.
Indeed, New Hope alleges that it avoids government funding
precisely to “ensure its autonomy to operate in accordance with its
religious beliefs.” Compl. ¶ 51. Thus, “subsidized speech” cases
cannot support the identification of “government speech” here. See
Matal v. Tam, 137 S. Ct. at 1760–61 (Alito, J., plurality opinion). 26
26In Matal v. Tam, a Supreme Court plurality treated the questions of “government
speech” and “subsidized speech” as distinct, noting that subsidized speech can
“implicate a notoriously tricky question of constitutional law” because, at the same
time that the law recognizes that “government is not required to subsidize
activities that it does not wish to promote,” it also prohibits government from
“deny[ing] a benefit to a person on a basis that infringes his constitutionally
protected . . . freedom of speech even if he has no entitlement to that benefit.” 137
S. Ct. at 1760–61 (internal quotation marks omitted). Applying these principles in
Agency for International Development and Velazquez, the Supreme Court ruled that
the latter was determinative and that the challenged speech conditions there
violated the First Amendment even as applied to funding recipients. See Agency
for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 570 U.S. at 214–15, 217–18 (holding
unconstitutional funding condition requiring recipients to affirm opposition to
prostitution because it compelled grant recipient “to adopt a particular belief as a
condition of funding”); Legal Servs. Corp. v. Velazquez, 531 U.S. at 540–41, 548–49
(holding challenged funding condition on legal services unconstitutional because
it “exclude[d] certain vital theories and ideas”). In Matal v. Tam, the plurality
58
Insofar as a particular viewpoint might be identified as
“government speech” without regard to government funding, the
Matal Court urged “great caution” in extending the doctrine beyond
its established precedents. Id. at 1758. As Justice Alito explained, the
government-speech doctrine is both “essential” and “dangerous”:
essential to avoid “paralyzing” government, id. at 1757 (observing
that when “government entity embarks on a course of action, it
necessarily takes a particular viewpoint and rejects others”), but
dangerous because, as we have already noted, “[i]f private speech
could be passed off as government speech by simply affixing a
government seal of approval, government could silence or muffle the
expression of disfavored viewpoints,” id. at 1758. 27
In Matal v. Tam, 137 S. Ct. at 1759–60, the Court identified three
circumstances where Supreme Court precedents identified
government speech: a federally created advertising program to
explained that there was no need to weigh the identified competing principles in
that case because trademarks involved no government subsidy or expenditure
beyond that associated with any government service. See 137 S. Ct. at 1761. The
same conclusion obtains with respect to New Hope’s privately funded, authorized
adoption services.
27Members of the Court had also expressed reservations about the government-
speech doctrine in Pleasant Grove City v. Summum, 555 U.S. 460 (2009), discussed
infra at 60–62, 64. See Pleasant Grove City v. Summum, 555 U.S. at 481 (Stevens, J.,
joined by Ginsburg, J., concurring) (stating that “decisions relying on the recently
minted government speech doctrine to uphold government action have been few,
and, in my view, of doubtful merit”); id. at 484 (Breyer, J., concurring) (expressing
understanding that doctrine is “a rule of thumb, not a rigid category”); id. at 485
(Souter, J., concurring in judgment) (urging Court to “go slow in setting” bounds
of government-speech doctrine).
59
promote the sale of beef, see Johanns v. Livestock Mktg. Ass’n, 544 U.S.
550 (2005); a local government’s acceptance of a Ten Commandments
monument for display in a city park, see Pleasant Grove City v.
Summum, 555 U.S. 460; and a state’s allowance of specialty license
plates, see Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576
U.S. 200 (2015).
In the first circumstance, the Court held that the ads were
government speech because “[t]he message set out in the beef
promotions [was] from beginning to end the message established by
the Federal Government.” Matal v. Tam, 137 S. Ct. at 1759 (brackets in
original) (quoting Johanns v. Livestock Mktg. Ass’n, 544 U.S. at 560, and
noting that Congress and Secretary of Agriculture provided
guidelines for content of ads, Agriculture officials attended meetings
at which content of ads was discussed, and Secretary could edit or
reject any proposed ad).
In the monuments case, “many factors” indicated that park
monuments represented government speech, among them, (a)
government’s historic use of monuments to speak to the public, (b) a
tradition of parks selectively accepting and displaying donated
monuments, (c) the public’s close identification of public parks with
the government owning the parkland, and (d) the accepted
monuments were meant to and had the effect of conveying a
government message. Id. at 1759–60 (citing Pleasant Grove City v.
Summum, 555 U.S. at 472).
60
Finally, in the specialty plates case—described by Matal as
“likely mark[ing] the outer bounds of the government-speech
doctrine”—three factors were determinative: (a) States had long used
license plates to convey government messages; (b) the public closely
identified license plates with the State because it manufactured and
owned the plates, generally designed them, and used them as a form
of government identification; and (c) Texas maintained direct control
over the messages conveyed on specialty plates. Id. at 1760 (citing
Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. at 207–
13). 28
The factors highlighted in these cases are either not present
here, or not sufficiently present at the pleading stage to warrant
reliance on government speech as a ground for dismissal.
First, by contrast to the monuments discussed in Pleasant Grove
and the license plates at issue in Walker, adoption has not historically
been treated by government as a means for it to communicate with
the public on various matters. Rather, adoption’s singular focus is on
identifying a placement that is in the best interests of a child.
Second, by contrast to any of the three precedents cited in Matal,
nothing in the pleadings suggests that the public understands New
Hope’s expressive activities, either in generally providing adoption
28This court has relied on these three Walker factors in considering government-
speech claims. See, e.g., Wandering Dago, Inc. v. Destito, 879 F.3d 20, 34–36 (2d Cir.
2018) (considering factors in determining that names of food vendors at state-
organized lunch program were not government speech).
61
services or, ultimately, in recommending a child’s placement, to be
the State’s own message. The general principle that State
authorization by itself does not transform the authorized actor’s
speech into government speech, see Matal v. Tam, 137 S. Ct. at 1758,
applies with particular force here, where New York itself operates 58
state-denominated adoption agencies at the same time that it
authorizes some 70 private, non-profit organizations also to offer
adoption services. Many of those organizations, including New
Hope, have done so for decades and have long established private
identities.
The pleadings further indicate that, from its first meeting with
prospective adoptive parents, New Hope makes its private identity
clear, specifically, its identity as a religious ministry. It starts
meetings with a prayer and uses scripture passages and religious
texts to explore “how faith in God can help [adoption] applicants.”
Compl. ¶¶ 105, 109, 111–112. A person listening to such explicitly
religious messages from a private entity operating from a non-state
location would not be likely to understand the messages conveyed as
those of the State of New York, rather than New Hope’s own. Cf.
Pleasant Grove City v. Summum, 555 U.S. at 472 (holding government’s
acceptance of monument for public parkland, where government had
used monuments to convey its messages to public, identified
monument as “government speech”); Johanns v. Livestock Mktg. Ass’n,
544 U.S. at 560 (stating that message set out in challenged promotion
was “from beginning to end the message established by the Federal
Government”). Indeed, OCFS itself does not seem to think there is
62
much risk of misattribution because it nowhere suggests that there is
anything improper in New Hope conveying religious messages or
employing religious rituals in providing adoption services, which
presumably New Hope could not do if it were speaking for the State.
Viewed most favorably to New Hope, then, the pleadings
suggest that OCFS is not seeking to avoid having New Hope’s views
attributed to the State but, rather, is demanding that New Hope—in
order to continue operating as an authorized adoption agency—
express a State view with which it disagrees, i.e., that it can be in the
best interests of a child to be adopted by an unmarried or same-sex
couple. In Walker, the Supreme Court stated that “the First
Amendment stringently limits a State’s authority to compel a private
party to express a view with which the private party disagrees.”
Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. at 219.
Indeed, this limitation may apply even when the government is
looking to communicate its own message through a private entity. See
id. at 208 (stating that “Free Speech Clause itself may constrain the
government’s speech if . . . the government seeks to compel private
persons to convey the government’s speech”).
Third, although the adoption process in New York is certainly
more regulated than the trademark process at issue in Matal v. Tam,
137 S. Ct. at 1758–59, a court cannot conclude at the pleadings stage
that “from beginning to end” the messages conveyed by New Hope
are so controlled by New York as to be the State’s own, Johanns v.
Livestock Mktg. Ass’n, 544 U.S. at 560. As discussed supra at 11–16, the
laws and regulations identifying factors relevant to determining the
63
best interests of a child awaiting adoption appear to afford authorized
agencies considerable discretion in weighing those factors and in
exercising independent judgment as to the propriety of any particular
placement. By contrast to the extensive involvement of federal
officials in the promotional campaign at issue in Johanns, it seems no
New York officials engage directly with private authorized agencies
as they recruit, instruct, evaluate, and ultimately recommend
adoptive parents to a child’s birth parents and to the court. Nothing
in the pleadings indicates that OCFS officials ever review, edit, or
reject a private authorized agency’s best-interests assessment before
a child’s placement in an adoptive family. Cf. Walker v. Texas Div.,
Sons of Confederate Veterans, Inc., 576 U.S. at 213 (highlighting State’s
maintenance of direct control over messages conveyed on specialty
plates); Pleasant Grove City v. Summum, 555 U.S. at 471–72 (referencing
tradition of parks selectively accepting and displaying donated
monuments); Johanns v. Livestock Mktg. Ass’n, 544 U.S. at 561 (stating
that government could edit, or even reject, proposed advertisement).
In sum, on the pleadings record, none of the three factors that
courts rely on in identifying “government speech” weighs in favor of
identifying any speech by New Hope as such. Nor do they compel
that conclusion as a matter of law when considered together. Further
proceedings may produce additional evidence that casts these
pleadings in a different light. We here hold only that New Hope’s
First Amendment compelled speech claim cannot be dismissed now
on the ground that any speech at issue is government speech.
64
ii. No Compelled Speech
Alternatively, the district court dismissed New Hope’s free
speech claim because OCFS and 18 NYCRR § 421.3(d) “simply do not
compel speech” or even compel New Hope “to change the message it
wishes to convey.” New Hope Family Servs. v. Poole, 387 F. Supp. 3d at
217–18. The court acknowledged New Hope’s assertion that it
provides “extensive” information to potential adoptive parents and
birthparents consistent with its religious views on marriage and the
family. Id. at 218. Nevertheless, it concluded that “nothing is
preventing New Hope from continuing to share its religious beliefs
throughout the entire process.” Id. Indeed, the court expressed “no
doubt that New Hope’s general disapproval of cohabitating
unmarried couples and same sex couples will continue to be made
clear.” Id. Similarly, while acknowledging New Hope’s complaint
that forcing it to approve and recommend unmarried and same-sex
couples as adoptive parents would “send a message . . . that [New
Hope] accepts such relationships as appropriate and believes that
adoption by such couples can be in the best interests of the child,” id.
at 217 (brackets in original) (internal quotation marks omitted), the
district court concluded that, in fact, “the only message that would be
conveyed” by New Hope’s approving an unmarried or same-sex
couple for adoption “is that, applying the [relevant] regulatory
criteria . . . , placement with such a couple would be in the child’s best
interest,” id.; see also id. at 218 (“[T]he only statement being made by
approving such couples as adoptive parents is that they satisfy the
65
criteria set forth by the state, without regard to any views as to the
marital status or sexual orientation of the couple.”).
Both conclusions are premature. It is hardly evident from the
pleadings that OCFS, in requiring New Hope to conform its policies
to 18 NYCRR § 421.3(d), would permit New Hope to counsel
unmarried and same-sex couples that it is in the best interests of a
child to be adopted by a heterosexual married couple and not in the
best interests of a child to be adopted by an unmarried or same-sex
couple. The regulation, after all, prohibits harassment as well as
discrimination and, as the district court itself recognized in a colloquy
exchange, if New Hope were to express such views, it would likely
face a lawsuit “the next day.” J. App’x at 237.
In its brief to this court, OCFS no longer disclaims the
possibility of it restricting New Hope’s speech in providing adoption
services. Rather, OCFS acknowledges that “any restriction on New
Hope’s expressive activities within the contours of its provision of
adoption activities remains unclear.” Appellee Br. at 54. 29 While
OCFS maintains that “New Hope remains free to espouse its beliefs
about marriage and family,” and to “advocat[e] for adoptions by
married heterosexual couples, outside the contours of its provision of
. . . adoption services,” id. (emphasis added), that concession is
meaningless. New Hope does not claim that OCFS would compel or
29This represents a departure from OCFS’s position before the district court. It
there asserted that 18 NYCRR § 421.3(d) “neither compels, nor prohibits, New
Hope from . . . expressing its beliefs, religious or otherwise.” J. App’x at 188.
66
limit its speech if it loses authorization to provide adoption services.
Rather, New Hope sues OCFS for violating its right to free speech as
an authorized adoption agency. The pleadings record admits a
plausible inference that New Hope cannot both comply with 18
NYCRR § 421.3(d), as required to retain its authorization to provide
adoption services, and express its view that adoption by unmarried
and same-sex couples is not in the best interests of a child. Thus,
discovery is warranted to determine the extent to which the required
compliance will restrict or compel New Hope’s speech.
Nor is a different conclusion warranted by OCFS’s assertion
that “all” it has done to date is “regulate New Hope’s conduct—its
refusal to provide adoption services to or place children with
unmarried and same-sex couples.” Id. at 51. As the Supreme Court
has long recognized, even conduct can claim the protections of Free
Speech where “[a]n intent to convey a particularized message [is]
present, and . . . the likelihood [is] great that the message would be
understood by those who viewed” or learned of the conduct. Texas v.
Johnson, 491 U.S. at 404 (first brackets in original) (internal quotation
marks omitted); see Church of Am. Knights of the Ku Klux Klan v. Kerik,
356 F.3d 197, 205 (2d Cir. 2004) (same). In any event, the pleadings
here, viewed most favorably to New Hope, demonstrate more than
conduct. New Hope asserts that, consistent with New York law, it
can only place a child with an adoptive couple if it approves the
placement as in the best interests of the child. See 18 NYCRR
§ 421.18(d). Thus, New Hope has a plausible claim that by compelling
it to place children with unmarried and same-sex couples, OCFS is
67
necessarily compelling New Hope to engage in the speech required
for that conduct—speech with which New Hope does not agree.
The district court recognized the inextricable link between New
Hope’s speech and conduct in the placement of a child for adoption.
Nevertheless, the court dismissed New Hope’s free speech claim
upon concluding that the only message that its approval would
convey is that an unmarried or same-sex couple satisfies the State
regulations’ criteria for an adoptive placement. See New Hope Family
Services v. Poole, 387 F. Supp. 3d at 217. This implies that approval
communicates no judgment by New Hope itself. Again, this
conclusion cannot be reached at the pleadings stage.
As we have already observed, the regulatory criteria applicable
to adoption provide agencies with no mere quantitative checklist. 30
Rather, the regulations, by their nature, entrust authorized agencies
with considerable discretion to exercise judgment in determining the
best interests of a child. See supra at 11–16 (discussing various
regulations). OCFS acknowledges as much in stating that “[t]he
statutory [and regulatory] scheme bestows significant authority on
authorized agencies.” Appellee Br. at 4. Nowhere do the regulations
define “best interests.” They state only that the determination should
consider, (1) “the appropriateness of placement in terms of the age of
the child and of the adoptive parent(s)”; (2) “the physical and
emotional needs of the child in relation to the characteristics,
30We have no occasion here to consider whether other regulations, including
quantitative factors, might implicate compelled speech in certain circumstances.
68
capacities, strengths and weaknesses of the adoptive parent(s)”; and
(3) “the requirement . . . to place minor siblings or half-siblings
together . . . unless . . . such placement [is determined] to be
detrimental to the best interests of one or more of the children.” Id.
§ 421.18(d). These factors admit no single answer, but require the
exercise of agency judgment. Moreover, the regulation states that a
best-interests determination is “not limited to” these factors, id.,
which further cautions against a narrow characterization of the
message conveyed by such a determination.
Related regulations are similarly broadly cast. For example, in
the home study that adoption agencies must conduct before deciding
whether it is in the particular interest of a child to be placed with an
applicant, the agency must “explore each applicant’s ability to be an
adoptive parent,” discussing a range of topics including “principles
related to the development of children,” “reasons a person seeks to
become an adoptive parent,” the applicant’s “understanding of the
adoptive parent role,” the applicant’s “psychological readiness to
assume responsibility for a child,” and the agency’s role in
“supervising and supporting the adoptive placement.” Id.
§ 421.15(d). Agencies must also “explore” an applicant’s “capacity to
give and receive affection,” and “ability to provide for a child’s
physical and emotional needs.” Id. § 421.16(a). The regulations do
not instruct authorized agencies as to how they should evaluate or
weigh these factors. Rather, these matters are left to the exercise of
agency judgment and discretion, which will necessarily be informed,
69
to at least some degree, by the agency’s conception of a child’s best
interests.
In New Hope’s case, that conception has, as its starting point,
the “biblical model for the family” as “one man married to one
woman for life.” Compl. ¶ 56. Given the discretion inherent in New
York laws and regulations pertaining to the identification of adoption
placements that are in the best interests of a particular child, a court
could not conclude on the pleadings that New Hope can identify a
child’s best interests, and, therefore, approve an adoption placement,
without communicating its viewpoint—or the one that it complains
OCFS is compelling it to adopt. Thus, it was premature for the district
court to conclude that requiring New Hope to provide adoption
services to unmarried and same-sex couples compelled no speech
subject to First Amendment protection.
b. Expressive Association
As a second part of its Free Speech claim, New Hope charges
OCFS with impeding its right of association.
“Association” occupies a clearer place in American history than
in American law. As to the former, what Tocqueville famously
observed in 1835 has remained true for almost two centuries: “In no
country in the world has the principle of association been more
successfully used or applied to a greater multitude of objects than in
America.” 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 191
(Phillips Bradley ed., Vintage Books 1990) (1835). As pertinent here,
one of the “objects” for which Americans have laudably associated
70
throughout their history has been to care for orphaned and
abandoned children. See supra at 8 n.3.
The law, however, recognizes no fundamental “right of
association.” The First Amendment does not, by its terms, pronounce
such a right. See City of Dallas v. Stanglin, 490 U.S. 19, 23–24 (1989).
Nevertheless, the Supreme Court has applied the First Amendment
to association claims in two limited circumstances: “choices to enter
into and maintain certain intimate human relationships,” and
“associat[ion] for the purpose of engaging in those activities protected
by the First Amendment—speech, assembly, petition for the redress
of grievances, and the exercise of religion.” Roberts v. U.S. Jaycees, 468
U.S. 609, 617, 618 (1984); see Jacoby & Meyers, LLP v. Presiding Justices
of the First, Second, Third & Fourth Dep’ts, Appellate Div. of the Supreme
Court of N.Y., 852 F.3d 178, 187–88 (2d Cir. 2017). It is the latter—so-
called “expressive association”—that New Hope invokes in this case.
New Hope asserts that its adoption ministry is an expressive
association in that it employs protected speech to “convey[] a system
of values about life, marriage, family and sexuality to both
birthparents and adoptive parents through its comprehensive
evaluation, training, and placement programs.” Compl. ¶ 270. New
Hope alleges that OCFS’s actions in applying 18 NYCRR § 421.3(d)
impair New Hope’s ability to advocate for its values. Specifically,
New Hope maintains that requiring it to “[i]nclud[e] unmarried or
same-sex couples in [its] comprehensive evaluation, training, and
placement programs and adoptive-parent profiles would change
71
New Hope’s message and counseling to adoptive families and
birthparents.” Id. ¶ 273. 31
In dismissing New Hope’s association claim, the district court
concluded that the adoption agency could show only “slight
impairment” to its expressive activity because New Hope was “not
being required to hire employees that do not share [its] same religious
values,” and was not “prohibited in any way from continuing to voice
[its] religious ideals.” New Hope Family Servs., Inc. v. Poole, 387 F.
Supp. 3d at 219. For the same reasons the latter conclusion cannot be
reached at the pleading stage with respect to New Hope’s compelled
speech claim, see supra at 65–70, it cannot be reached with respect to
New Hope’s expressive association claim.
As for the “slight impairment” conclusion, it too is premature.
Compelled hiring, like compelled membership, may be a way in
which a government mandate can “affect[] in a significant way [a]
31OCFS argues on appeal that New Hope is not engaged in expressive association
because it is “not open to membership and was not organized for the purpose of
engaging in expressive activities.” Appellee Br. at 58. The membership argument
fails for reasons stated in text infra at 72–74 with respect to compelled hiring. As
for “purpose,” even if OCFS’s urged conclusion could be reached at the pleadings
stage, it would not compel dismissal. The Supreme Court has required that an
organization “engage in some form of expression”—not that it be expressly
constituted for that purpose—to claim expressive association protection. See Boy
Scouts of Am. v. Dale, 530 U.S. 640, 648 (2000); Pi Lambda Phi Fraternity, Inc. v. Univ.
of Pittsburgh, 229 F.3d 435, 443 (3d Cir. 2000), as amended (Nov. 29, 2000) (stating
that Supreme Court has not required organization to be “primarily expressive[] in
order to receive constitutional protection for expressive associational activity”).
The pleadings easily satisfy this standard.
72
group’s ability to advocate public or private viewpoints.” Boy Scouts
of Am. v. Dale, 530 U.S. at 648. But it is not the only way. Cf. Rumsfeld
v. FAIR, 547 U.S. at 69 (acknowledging that “freedom of expressive
association protects more than just a group’s membership decisions”).
The pleadings, viewed most favorably to New Hope, indicate
that OCFS, in enforcing 18 NYCRR § 421.3(d), may require New Hope
to “correct[] or disciplin[e]” employees who, sharing New Hope’s
religious beliefs, act on, or even express, those beliefs in interacting
with birthparents or prospective adoptive parents. 18 NYCRR
§ 421.3(d) (prohibiting discrimination and harassment and requiring
authorized agencies to correct or discipline employees who engage in
such). In short, New Hope complains that OCFS is not only directly
limiting its own ability to promote its beliefs and values through its
adoption services, but also, OCFS is requiring New Hope to use
discipline to enforce those same expressive limitations as to its
employees. This admits a plausible inference that OCFS is making
association with New Hope “less attractive” for those who would
otherwise combine their voices with the agency’s in order to convey
their shared beliefs and values more effectively. See Rumsfeld v. FAIR,
547 U.S. at 68–69.
In Rumsfeld, the Supreme Court rejected an expressive
association challenge to a federal law requiring schools to afford
equal campus access to military recruiters. The Court observed that
such compelled access did not affect “a law school’s associational
rights” because “[s]tudents and faculty” remained “free to associate
to voice their disapproval of the military’s message” and “nothing
73
about the statute affect[ed] the composition of the group by making
group membership less desirable.” Id. at 69–70. By contrast, here, the
pleadings admit a plausible inference that neither New Hope nor any
employees that associate with it in its adoption ministry will be free
to voice their religious beliefs about the sorts of marriages and
families that they believe best serve the interests of adopted children.
Thus, discovery is required to determine what, if any, leeway OCFS
will grant New Hope and its like-minded employees in expressing
their religious views before any determination can be made as to how
significantly OCFS’s challenged actions will impede New Hope’s
associational ability to advocate its religious viewpoints.
Because New Hope’s expressive association claim survives
dismissal on these grounds, we need not now conclusively decide
whether a claim of compelled association with unmarried and same-
sex couples pursuing adoption implicates expressive association.
While such couples may not be seeking the sort of affiliation with
New Hope generally associated with membership organizations, see
Boy Scouts of Am. v. Dale, 530 U.S. 640, neither is theirs the “chance
encounter[]” of dance-hall patrons, City of Dallas v. Stanglin, 490 U.S.
at 25. Rather, the pleadings, viewed most favorably to New Hope,
indicate that OCFS is requiring New Hope to associate with
unmarried and same-sex couples for the purpose of providing
services leading to adoption, an outcome that could tie New Hope,
the couple, and an adopted child together for months, or even years.
See supra at 21–25. To the extent New Hope maintains that such
compelled association would impede its ability to convey its religious
74
beliefs about adoption in a way distinct from that resulting from the
compelled speech of which it complains, it will have the opportunity
to develop supporting evidence during discovery. We do not here
predict whether New Hope will be able to do so. Cf. Telescope Media
Grp. v. Lucero, 936 F.3d 740, 760 (8th Cir. 2019) (holding expressive
association challenge to law prohibiting videographers from
discriminating between heterosexual and same-sex weddings was
“really a disguised free-speech claim” duplicative of claim on
compelled-speech theory, and allowing only latter to proceed). We
conclude only that the expressive association claim does not fail as a
matter of law on the pleadings.
In sum, we conclude that none of New Hope’s First
Amendment claims—for Free Exercise of Religion, for Free Speech on
a theory of compelled speech, and for Free Speech on a theory of
expressive association—can be dismissed at the pleadings stage.
Accordingly, we reverse the judgment of dismissal as to these claims.
Preliminary Injunction
We review the denial of a motion for a preliminary injunction
for abuse of discretion, which we will identify only if the decision
rests on an error of law or a clearly erroneous finding of fact, or cannot
be located within the range of permissible decisions. See, e.g., North
Am. Soccer League, LLC v. U.S. Soccer Fed'n, Inc., 883 F.3d 32, 36 (2d Cir.
2018). The district court’s denial of New Hope’s preliminary
injunction motion as moot rests on an error of law, specifically, the
court’s dismissal of all New Hope’s claims. For reasons stated in the
75
preceding sections of this opinion, New Hope’s Free Exercise and
Free Speech claims should not have been dismissed and, thus, its
preliminary injunction motion was not moot.
New Hope urges that in vacating the denial of its preliminary
injunction motion, this court direct entry of the requested injunction
on remand. We recognize our authority to do so. See, e.g., New York
Progress & Prot. PAC v. Walsh, 733 F.3d 483, 489 (2d Cir. 2013); Hsu v.
Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 873 (2d Cir. 1996)
(“Although reversal of an order denying an application for a
preliminary injunction is customarily accompanied by a directive that
the district court conduct a new hearing on remand, an appellate
court, on a finding of merit in plaintiff’s case, can in the alternative
direct the district court to issue the injunction.” (quoting Patton v.
Dole, 806 F.2d 24, 31 (2d Cir. 1986))). But we leave it to the district
court in the first instance to decide if such equitable relief is warranted
and its exact scope. Nevertheless, a few observations may be useful
to guide the district court’s exercise of its discretion on remand.
First, because New Hope seeks a preliminary injunction to stay
government action taken in the public interest pursuant to a statutory
(and regulatory) scheme, it must establish both a likelihood of success
on the merits and irreparable harm in the absence of an injunction.
See Alliance for Open Soc’y Int’l, Inc. v. Agency for Int’l Dev., 651 F.3d
218, 230 (2d Cir. 2011), aff’d., 570 U.S. 205; Alleyne v. N. Y. State Educ.
Dep’t, 516 F.3d 96, 101 (2d Cir. 2008). The “loss of First Amendment
freedoms . . . unquestionably constitutes irreparable injury.”
International Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 71 (1996)
76
(internal quotation marks omitted). Thus, “the dominant, if not the
dispositive, factor” in deciding whether to grant a preliminary
injunction in this case is New Hope’s ability to demonstrate likely
success on the merits of its Free Exercise and Free Speech claims. New
York Progress & Prot. PAC v. Walsh, 733 F.3d at 488.
Second, when the pleadings are viewed in the light most
favorable to New Hope, serious concerns arise as to whether OCFS’s
challenged actions violate the Free Exercise and Free Speech Clauses.
See supra at 32–53 (discussing Free Exercise claim); id. at 65–70
(discussing compelled speech claim). In considering a motion for an
injunction, however, a court is not required to view the pleadings in
the light most favorable to New Hope. See Pope v. Cty. of Albany, 687
F.3d 565, 570 (2d Cir. 2012). Nevertheless, because New Hope’s
complaint is verified, the district court can treat its detailed factual
allegations as evidence. See Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir.
1995); 5A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL
PRACTICE AND PROCEDURE § 1339 (4th ed. 1990).
In doing so here, the district court should consider that the facts
alleged in the verified complaint, as well as those in sworn affidavits
submitted by New Hope in support of a preliminary injunction, are
largely unrefuted in OCFS’s filings in opposition to injunctive relief.
The single opposing affidavit submitted by OCFS asserts that 18
NYCRR § 421.3(d) applies uniformly and neutrally to all authorized
adoption agencies in New York. J. App’x at 169. But the assertion is
conclusory and, while true as applied to the statutory text, see supra at
37, does not address pleaded circumstances raising neutrality
77
concerns, detailed supra at 43–53. The district court may properly
consider the lack of evidence assuaging these concerns in determining
the likelihood of New Hope succeeding on its Free Exercise claim.
Similarly, in determining the likelihood of New Hope
succeeding on its Free Speech claim, the district court can consider
OCFS’s failure to provide factual support for its contention that a
privately funded, faith-based adoption agency such as New Hope
engages in “government speech” when it makes adoption
recommendations based on its determination of the best interests of a
child. Nothing in the existing record indicates that any listener has
ever understood New Hope to be speaking or acting as an agent of
the State in providing adoption services. Indeed, an affidavit
submitted by New Hope indicates the contrary. See generally J. App’x
131–134 (Bleuer Aff.). Nor is there existing record evidence that state
officials exercise the degree of control over New Hope’s expressive
activities generally reflective of government speech. See supra at 63–
64.
As to the likelihood of New Hope showing that OCFS is
compelling it to speak contrary to its beliefs, the district court should
consider whether an agency’s adoption recommendation—expressly
or implicitly—pronounces a particular placement to be in the “best
interests” of the child. It should also consider the possibility of New
Hope’s expressive activities in the provision of adoption services
being restricted or penalized, particularly in light of OCFS’s inability
to assure otherwise in this court. See supra at 66.
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Third, in opposing a preliminary injunction, OCFS characterizes
“adoptive services” as “government services.” J. App’x at 168–69. To
the extent this characterization bears on the likelihood of New Hope
succeeding on its claims, the district court can consider whether laws
permitting only State “authorized” agencies to provide adoption
services and establishing criteria for the provision of such services
warrant recognizing the services themselves as governmental.
Factors relevant to this determination can include that (a) authorized
agencies, as in New Hope’s case, can be privately funded and faith
based; (b) the State does not preclude faith-based organizations from
referencing religious beliefs and using religious rituals in providing
adoption services, something that the State itself could not do; (c) the
State itself operates over 50 adoption agencies at the same time it
authorizes some 70 private adoption agencies; (d) the State’s criteria
for adoption services appear to afford authorized agencies
considerable discretion in the final identification of the best interests
of an adopted child; and (e) State regulations prohibit (or at least limit)
consideration of certain facts, including a prospective parent’s sexual
orientation and marital status, in identifying the best interests of an
adopted child.
Fourth, OCFS’s declaration stresses the State’s strong interest in
preventing discrimination against prospective unmarried and same-
sex couples. It maintains that preventing such discrimination serves
the bests interests of children awaiting adoption by “provid[ing] a
broad and diverse pool of adoptive parents” and, thereby,
“maximiz[ing] the number of prospective adoptive parents.” Id. at
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168. It also serves “to prevent the trauma and social harm caused by
discrimination against lesbian, gay, bisexual, transgender, queer or
questioning (LGBTQ) people.” Id.
Should the district court determine that New Hope is likely to
succeed in demonstrating that 18 NYCRR § 421.3(d) is not being
applied neutrally but, rather, is being used to exclude its religious
beliefs from the public arena or to compel (or preclude) its speech,
OCFS must do more than identify a State interest. It must
demonstrate that its challenged actions are narrowly tailored to serve
that interest without unnecessarily impairing New Hope’s Free
Exercise of Religion or Free Speech. See, e.g., Lukumi v. Hialeah, 508
U.S. at 546. Should the district court consider tailoring, record
evidence raises certain concerns.
To state the obvious, it is no small matter for the State to order
the closure of a privately funded, religious adoption ministry that has,
over 50 years of authorized operation, successfully placed
approximately 1,000 children in adoptive homes, particularly when
there is no suggestion that any placement was not in the best interests
of the adopted child. While there is no question that OCFS is
authorized to enforce 18 NYCRR § 421.3(d), the exact source of its
authority to order closure for a violation of that regulation is not clear
on the present record. See supra at 50–51. Thus, identifying that
authority may be important to any tailoring determination.
Even assuming such authority, however, other tailoring
concerns warrant consideration. For example, New Hope asserts that
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it does not provide adoption services to unmarried and same-sex
couples because its religious beliefs do not permit it to state that it
would be in the best interests of a child to be placed for adoption with
such couples. To avoid its beliefs preventing such couples’ pursuit of
adoption, New Hope is willing now, as it has in the past, to recuse
itself from their cases, and to refer them to other adoption agencies,
including those operated by the State. The question arises: Is this
recusal-and-referral practice a narrowly tailored means for avoiding
discrimination without impairing New Hope’s Free Exercise and Free
Speech rights?
To be sure, recusal and referral do not permit unmarried and
same-sex couples to obtain adoption services from New Hope. But
the existing record reveals no complaint from any referred couple.
Nor does it indicate that any couple was unable to adopt as a result of
referral. In the absence of any such evidence, 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
interests. 32 Should OCFS adduce such evidence on remand, the
district court can properly consider it in light of the totality of the
32Insofar as OCFS also asserts a State interest in avoiding trauma and social harm
to LGBTQ children awaiting adoption, that appears not to be at issue in this case
given that New Hope professes to focus its adoption efforts on infants under the
age of two. But, of course, if OCFS thinks otherwise, it can clarify its position on
remand.
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circumstances, including how, if at all, New Hope’s recusal-and-
referral practice limits the ability of unmarried and same-sex couples
easily to obtain adoption services; 33 and how well the State’s interest
in maximizing both the number and diversity of prospective adoptive
parents is served by (a) allowing New Hope to continue providing
adoption services subject to a recusal-and-referral practice, as
compared to (b) requiring New Hope to close its adoption operation.
These questions, like adoption itself, must also take into account the
best interests of the many children awaiting adoption in a State where
they number far more than the persons willing to adopt them.
In sum, because we reverse the dismissal of New Hope’s Free
Exercise and Free Speech claims, we also vacate the denial of New
Hope’s preliminary injunction motion as moot. This court does not
order the district court on remand to grant such an injunction. Rather,
we leave it to the district court, in the first instance, to weigh the
merits of the motion consistent with this opinion.
Conclusion
To summarize,
(1) The pleadings, viewed in the light most favorable to plaintiff
New Hope, state plausible claims under the Free Exercise
33 See supra at 47 n.20.
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and Free Speech Clauses of the Constitution. Among other
things, the pleadings,
(a) raise a plausible suspicion that OCFS acted with
hostility towards New Hope because of the latter’s
religious beliefs,
(b) plausibly allege that New Hope would be compelled
to speak or associate in violation of those beliefs if the
regulation in question were enforced, and
(c) do not permit a court to conclude as a matter of law
that New Hope’s speech equates to government
speech merely because New York State has
authorized New Hope to provide adoption services.
(2) This case is not analogous to Fulton v. City of Philadelphia, 922
F.3d 140 (3d Cir. 2019), cert. granted, 140 S. Ct. 1104 (2020),
now pending before the Supreme Court, because,
(a) New Hope is not under contract with and receives no
funding from OCFS,
(b) OCFS has not identified New Hope as a public
accommodation, and
(c) the issue on this appeal is whether New Hope has
pleaded sufficiently plausible claims to defeat
dismissal, not whether it has demonstrated the
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likelihood of success on the merits required for the
injunctive relief denied in Fulton.
(3) Because New Hope’s Free Exercise and Free Speech claims
should not have been dismissed, its motion for a
preliminary injunction was not moot and should not have
been denied on that ground.
Accordingly, we REVERSE the district court’s judgment insofar
as it dismissed New Hope’s Free Exercise and Free Speech claims, and
we VACATE that judgment insofar as it denied New Hope’s motion
for a preliminary injunction. We REMAND the case to the district court
for further proceedings consistent with this opinion, including
prompt consideration of the merits of the reinstated preliminary
injunction motion. To facilitate prompt review, we ORDER any party
wishing to supplement its initial preliminary injunction filings in the
district court to do so within ten days of the issuance of this court’s
mandate. Any appeal from a ruling by the district court on the
preliminary injunction motion shall return to this panel. The limited
injunction entered by this court pending appeal shall remain in effect
unless and until vacated or modified by the district court. New
Hope’s June 18, 2020 motion for this court to expand this injunction
pending appeal is DENIED as moot.
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