Circuit revives religious objections to New York same-sex adoption rules

New York State said a private adoption agency was violating state anti-discrimination rules in refusing to allow unmarried and same-sex couples from adopting children. The private agency said these rules violated its rights under the First Amendment, in particular the free speech and religious freedom clauses. The district court dismissed the case, but the Court of Appeals revives the case.

The case is New Hope Family Services v. Poole, issued on July 21. New Hope has a religious objection to allowing unmarried and same-sex couples from adopting children. So the agency refers these families to other adoption providers. This case is decided in the middle of the culture wars brewing in these United States of America, where the Supreme Court recently held that Title VII prohibits discrimination on the basis of sexual orientation and gender identity, and religious groups are finding ways around governmental mandates.

The Second Circuit notes that the Supreme Court has stated that the Constitution protects religious objections to gay marriage, and the exercise of religion includes both belief and expression as well as "physical acts," such as assembling for religious purposes. Supreme Court rulings also hold that the government cannot interfere with religious principles if the rules demonstrate hostility toward religion. Nor may the government discriminate on the basis of religion in subtle ways. 

This case cannot be dismissed at this time, at least not prior to discovery, because the complaint alleges that New York is demonstrating religious animosity toward New Hope's religious principles against adopting children to unmarried and same-sex couples. State regulations do not require adoption agencies to approve adoption by any persons, and the state did not object to New Hope's practices for years before finally doing so in 2018. You might think that New Hope is violating state policy against this kind of discrimination, but New Hope is not the kind of "public accommodation" that must adhere to the anti-discrimination rules. The Court of Appeals also thinks that people from the State Office of Children and Families have made statements demonstrating hostility toward New Hope's religious principles, i.e., that some adoption providers have decided to compromise (their religious principles) to stay open. However we may interpret these comments, under the plausibility test guiding Rule 12 motions to dismiss, the Court of Appeals believes these comments are enough to prove religious hostility by the state.

We also have a free speech claim, the Court of Appeals (Raggi, Cabranes and Korman [D.J.]) says, because state policy might constitute compelled speech requiring New Hope to tell potential parents that it would be in the child's best interest to be adopted by an unmarried couple or same-sex couple. This compelled speech would violate New Hope's core religious beliefs. 

The case is remanded to the district court to determine whether New Hope is entitled to a preliminary injunction that would exempt these rules from plaintiffs like New Hope.