Lasche v. State of New Jersey

In Trenton, N.J., a couple filed suit against the State of New Jersey after the New Jersey’s Division of Child Protection and Permanency (DCPP) suspended their foster license and removed their foster children from their home due to their sincerely-held religious beliefs regarding sexual orientation. As members of the Christian faith, Michael and Jennifer Lasche possessed “traditional values and beliefs about family, marriage, and sex”, condemning ‘same-sex’ conduct as sinful. In September of 2017, DCPP caseworker, Kyle Higgins, and her supervisor, Katie Epperly, agreed to let the Lasches foster two sisters, one who was thirteen (Foster Child 1) and another who was ten (Foster Child 2). By November of 2017, the biological parents had lost all parental rights over the children and the Lasches were being considered for the adoption of the two sisters by October of that same year. During that time, the Lasches were informed by their caseworker that there was another prospective couple, comprised of “two wealthy gay men with lots of family around to support them and the adoption” from Illinois, that were willing to adopt the two sisters and their three other siblings. After a few days, the caseworker returned to the Lasches’ home to question Foster Child 1 about her willingness to change her religious beliefs surrounding the nature of homosexual conduct if she were to be placed with the other adoptive family. Afterwards, Foster Child 2 was removed from the Lasche’s home without explicit reasoning for DCPP’s course of action. 

At the upcoming court hearing, the DCPP was required to decide whether the children were to be adopted by the current foster parents, the Lasches, or transferred to the Illinois couple.

After the hearing in June of 2018, the Illinois couple decided to withdraw from the adoption process of the five siblings, prompting inquiries by DCPP regarding the Lasches’ religious beliefs. One of these inquiries occurred at one of Foster Child 1’s therapy sessions, where the child returned home crying after being confronted by the therapist, at the request of Higgins, regarding questions about her views surrounding ‘same-sex’ conduct. Additionally, Foster Child 1was approached by Higgins and another unnamed woman at Dunkin’ Donuts, where she was further questioned regarding her religious beliefs. Despite the adoption withdraw of the Illinois couple, Higgins called the Lasches to discuss the transfer of Foster Child 1 to the home of one of her other siblings. Shortly after this call, DCPP scheduled a meeting with the Lasches to express their concerns regarding the Lasches’ religious beliefs, their influence on the children’s views on ‘same-sex’ conduct, and the child’s best interests. After the meeting, DCPP representatives sought the removal of Foster Child 1 from the Lasche’s home, resulting in her alternative placement with Foster Child 2. Additionally, without prior notice, DCPP suspended the Lasche’s foster license. In assessing the background of this case, the primary constitutional question at hand lies in whether or not the New Jersey’s Division of Child Protection and Permanency (DCPP) violated the Lasches’ right to Free Exercise, by revoking their foster license and removing the foster children from their home.

In deciding whether or not New Jersey’s Division of Child Protection and Permanency (DCPP) violated the Lasches’ right to Free Exercise, it is important to consider whether DCPP’s treatment of the Lasches was conducted in a manner that was consistent with a law that is neutral and of general applicability. As established in the case Church of Lukumi Babalu Aye, Inc  v. Hialeah, the Supreme Court established that a law is not considered neutral if it intends “to infringe upon or restrict practices because of their religious motivation”. According to the opinion of the U.S. Court of Appeals for the 3^rd Circuit, the treatment of the Lasches was not consistent with any pre-existing neutral and generally applicable law enforced by the DCPP that was taken with other prospective adoptive families. Additionally, this line of reasoning was applied in the case Fulton v. City of Philadelphia, where 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 government was required to demonstrate that the given statue was necessary in achieving a compelling government interest. With regards to the DCPP, there was a compelling state interest in serving the best interests of the children in terms of guaranteeing the most suitable foster placement. However, the Lasche family had been foster parents for over 10 years without any concern or doubt expressed by the DCPP regarding their ability to serve the best interests of their foster children. Moreover, the attorney of Foster Child 1 argued that the child should remain with the Lasches in the court proceeding that discussed the potential placement transfer of the child. Furthermore, in analyzing the opinion of the U.S. Court of Appeals for the 3^rd Circuit, there was no cited event of endangerment that was undertaken by the Lasches that sought to threaten the best interests of the foster children, thereby, requiring the removal of their of foster license. As a result, I believe the Lasches did not subvert the state’s compelling state interest by merely expressing their views regarding marriage to their foster children, as this religious action has been historically protected by the Court seen in the case of Wisconsin v. Yonder. In this case, the Court decided that compulsory school attendance laws requiring children’s attendance past the eighth grade violated the parent’s constitutional right to direct the religious upbringing of their children. Due to the lack of parental rights by the biological parents of these foster children, I believe the Lasches’ sharing of religious beliefs is constitutionally protected, does not subvert the state’s compelling interest, nor requires the violation of their Free Exercise, seen in the  removal of their foster license and the custody of the children. 

Furthermore, I believe that it is also relevant to consider the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in deciding the outcome of this case. In Masterpiece Cakeshop v. Civil Rights Commission, Jack Phillips, the owner, denied the creation of a wedding cake for a same-sex wedding because of his religious beliefs regarding the sanctity of marriage. During the case proceedings, the Court identified that the Commission had exhibited hostility towards Phillip’s religious beliefs, seen in the disparaging comments made about Phillip’s beliefs by the Commission. At several points during the Commission’s formal public hearings, the commissioners promoted the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain. Furthermore, the Court found that the Commission’s dismissive comments demonstrated a lack of consideration for Phillip’s free exercise rights and even implied that his beliefs were “insubstantial or insincere”. More specifically, one of the commissioners declared the Philip’s faith was “one of the most despicable pieces of rhetoric that people can use”. As a result, the Court decided that the Commission’s actions towards Phillip violated the State’s duty under the First Amendment not to use hostility towards religious beliefs as a basis for laws or regulations. Therefore, the precedent was established that any state action based on “hostility to a religion or religious viewpoint’ violates the state’s obligations under the Free Exercise to ‘proceed in a manner that is neutral to religion’. With regards to the Lasches, it is clear that the DCPP displayed hostility towards the family’s religious beliefs, as they explicitly declared in a meeting with the family that their “religious beliefs were a problem” and that Foster Child 1 would need “therapy to deal with her belief that homosexual conduct is a sin”. Similarly, to the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, these dismissive comments demonstrated a lack of consideration of the family’s beliefs, when deciding to remove their foster license and Foster Child 1 from their custody. Furthermore, the family were never provided the statutorily required notice regarding the DCPP’s pursuance of a court hearing that sought to discuss the transition of Foster Child 1 to another foster home, as they were under the impression that Foster Child 1 would remain in their custody due to the withdraw of the Illinois couple. In addition, the Lasches were left unaware by DCPP that their license had been removed until much later after it had already happened. Lastly, the Lasches and their foster children were incessantly interrogated regarding their religious beliefs surrounding the subject matter of ‘same-sex’ conduct, seen in Foster Child 1’s therapy session and encounter with Higgins at Dunkin’ Donuts, and the scheduled meeting to discuss DCPP’s concerns over the Lasches’ religious beliefs. As a result, I believe DCPP’s hostility, seen in the aforementioned instances, towards the Lasches’ were the basis for the removal of their license and Foster Child 1. In other words, religious hostility clearly constituted the basis for the regulations enforced by DCPP on the Lasches and demonstrated a lack of fair and neutral treatment towards the Lasches.  

Overall, I agree with the outcome of the case, Lasche v. State of New Jersey, as the treatment of the Lasches, seen in the removal of the foster license and foster children, clearly proceeded in a manner that was intolerant towards religion. Seen in the comparison to the Fulton v. City of Philadelphia and Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission cases, the DCPP’s conduct was not consistent with a law of neutral and general applicability and demonstrated ‘hostility’ towards the Lasches’ religious beliefs, seen in the repeated interrogation of the family, unpronounced court hearings, and the removal of Foster Child 1. In the U.S. Court of Appeals for the 3^rd Circuit, the New Jersey couple won, sending the case back down for judgement by the lower courts. Furthermore, the appellate court affirmed that the removal of the Lasches’ foster license because of sharing their religious beliefs with the foster children was unconstitutional. 

 

Sources:

https://adfmedia.org/case/lasche-v-state-new-jersey

https://adfmedialegalfiles.blob.core.windows.net/files/LascheOpinion.pdf

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

https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf

https://www.oyez.org/cases/1971/70-110