New Hope Family Services v. Poole

        Located in Syracuse, New York, New Hope Family Services operates a Christian-based adoption and temporary-foster-placement agency and pregnancy resource center. Informed by its deeply-held religious beliefs, New Hope Family Services doesn’t recommend adoptions to any unmarried or same-sex couples due to their biblical philosophy that marriage must remain between a man and a woman. Furthermore, New Hope believes that children’s placement within families beyond the scope of married, heterosexual couples is not considered to be in the ‘best interest’ of the child. Throughout its years of operation, New Hope has been commended for the quality of its adoption services, however, the New York State’s Office of Children and Family Services recently described New Hope’s policy, that restricted children’s placement within homes of a married mother and father, to be “discriminatory and impermissible”. As an authorized agency, New Hope is subjected to the inspection and supervision of the OCFS with regards to any action related to the welfare of children. In 2010, the state of New York amended its Domestic Relations Law, expanding the right to adopt towards same-sex and unmarried couples in addition to heterosexual, married couples. However, this revision didn’t alter any of the prior standards regarding agencies’ ability to approve adoptions by any persons. In 2013, OCFS furthered prohibited “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”, urging agencies to take reasonable steps to avoid incidents of discrimination. 

When unmarried or same-sex couples contact New Hope, the agency notifies the couple that they are unable to provide them with adoption services and offers to provide these clients with referrals to other adoption agencies. However, in 2018, OCFS found this recusal and referral practice to be in violation of their 2013 anti-discrimination policy. As a result, the OCFS required that New Hope either revise its policy or terminate its adoption program. Refusing to comply, New Hope motioned for a preliminary injunction, which was initially denied and then vacated by the U.S. Court of Appeals for the 2^nd Circuit. In assessing the background of this case, the primary constitutional question at hand lies in whether New York State’s Office of Children and Family Services’ mandate, detailing New Hope Family Services’ obligation to either terminate their operations or revise their policy, breaches New Hope’s right to Free Exercise and Free Speech, as outlined in the First Amendment?

In deciding whether or not OCFS’s mandate violates New Hope’s right to the Free Exercise clause, I believe it is important to consider the neutrality of the anti-discrimination policy with which New Hope’s violation occurs. According to the case Employment Division v. Smith, a related precedent was established regarding the ability of ‘neutral, generally applicable laws’ to ‘incidentally burden religion’, arguing that one’s religion doesn’t excuse an individual from complying with an otherwise valid law. However, in the case of New Hope Family Services v. Poole, I argue that there seems to be sufficient reason to question the neutrality and general applicability of the anti-discrimination policy enforced by the OCFS. As established in Lukumi v. Hialeah, the Supreme Court has established that a law is not considered neutral if it intends “ to infringe upon or restrict practices because of their religious motivation”. In assessing the verbiage of the OCFS’s anti-discrimination policy, I believe the violation is ‘facially neutral’ in its attempt to prevent any possible incident of discrimination among the pool of potential, adoptive parent applicants. However, in practice, it can be argued that it infringes on the beliefs of certain religious sects that harbor strong views regarding the sanctity of marriage. With regards to New Hope Family Services, it is clear that the Christian faith permeates every activity and the overall mission of the organization, including their views regarding the ideal family structure in upbringing one’s children. However, by requiring a revision of the recusal and referral policy, the state would thereby require New Hope Family Services to act in a way that is inconsistent with their religious beliefs, impinging on their rights to freely exercise their religion. Furthermore, the agency doesn’t actively deny unmarried or same-sex applicants as adoptive candidates, but rather recuses from reviewing or considering their applications. Moreover, unmarried or same-sex applicants are welcome to use the services of other public, adoption agencies that don’t share in these beliefs, which is often part of a recommendation process suggested by New Hope. 

With regards to the anti-discrimination policy’s general applicability, OCFS told New Hope that “some Christian ministries have decided to compromise and stay open”, implying that OCFS potentially provided concessions in their enforcement of the policy through the mandate for other religious adoption agencies. Furthermore, OCFS made “exemptions for secular nonreligious purposes” within the anti-discrimination policy itself in allowing providers to consider protected characteristics within their placement procedure. In a typical adoption process, there is a complex consideration of multiple factors regarding the suitability of potential adoptive parents, including the adoptive parent’s capacity to give and receive affection, flexibility, and ability to change, etc. Furthermore, in choosing a child’s placement, agencies are given considerable discretion and are often inclined 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, allowing for refusals of potential parents on these grounds. As a result, it could be argued that religious considerations of marital status and sexual orientation should be included in these protected characteristics, in ensuring the ‘best fit’ or ‘most suitable’ family situation for the child. In applying related precedent, as established in Employment Division v. Smith, I think there is sufficient reason to question the general applicability and neutrality of the policy due to the aforementioned reasons.

 In a similar case, the City of Philadelphia barred Catholic Social Services from conducting adoption placements due to their strict policy against providing adoption licensing to same-sex couples. In deciding Futon v. City of Philadelphia, the Justices unanimously agreed that prohibiting CSS from providing adoption services or forcing them to certify same-sex licensing violated their First Amendment right to Free Exercise. In accordance with the precedent established in Employment Division v. Smith, it was decided that the discriminatory policy was neither neutral nor generally applicable, as it allowed for exemptions to the requirement based on the discretion of the Commissioner. As a result, the anti-discrimination policy was subjected to the ‘strict scrutiny’ test, where the government was required to demonstrate that the given statue was necessary in achieving a compelling government interest. With regards to the OCFS, two compelling state interests were identified in the construction of the anti-discrimination policy, including to avoid discrimination on the basis of marital status or sexual orientation, and to promote the pool of potential adoptive families. With regards to New Hope Family Services, I believe there is a ‘greater’ compelling state interest in ensuring children are placed in suitable family situations over the state’s concerns over merely increasing the applicant pool. In over 50 years of operation, New Hope has provided over 1,000 children with adoptive families that have been consistently considered in ‘the best interest of the child’, receiving no complaints regarding the adoption procedure until OCFS conducted a comprehensive review of New Hope. Furthermore, there is a clear need for adoption providers within the state of New York. Specifically, in the year 2017, there was approximately 27,000 children placed in foster care, with 4,400 waiting adoption.

Despite my accordance with the outcome of this case, I do recognize the potential implications regarding where judges should ‘draw the line’ between equality and liberty. As a result, important questions arise regarding, When does one’s religious rights allow an individual to ‘discriminate’ against or ‘violate’ another’s rights to equality? Alternatively, what circumstances require that the protection of certain minority groups against discrimination supersede the exercise of one’s religious beliefs?

According to the federal district court, it was decided that the New York State Office of Children and Family Services singled out the faith-based adoption provider in contending that their recusal and referral policy, that was motivated by their religious beliefs, was in violation of their 2013 anti-discrimination law. By enforcing the state law, the court found that “it would compel New Hope to process applicants from, or place children for adoptions with, same-sex or unmarried cohabitating couples insofar as it would prevent New Hope from referring such couples to other agencies.” On September 7^th, the federal district court denied the OCFS’s motion for summary judgement after the preliminary injunction was issued in October 2020 following the decision of the U.S. Court of Appeals for the 2^nd Circuit. 

 

Sources:

https://adfmedia.org/case/new-hope-family-services-v-poole

http://religionclause.blogspot.com/2022/09/new-york-violates-speech-rights-of.html

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/not-a-masterpiece/

https://adflegal.org/sites/default/files/2020-07/New%20Hope%20Family%20Services%20v.%20Poole%20-%202nd%20Circuit%20opinion.pdf

https://www.oyez.org/cases/2020/19-123