Denial of Foster Care Licensure Subject to Strict Scrutiny

In Burke v. Walsh, (D MA, June 5, 2024), a Massachusetts federal district court refused to dismiss free exercise and free speech claims brought against Massachusetts Department of Children and Families personnel in their official capacities. Plaintiffs, a Catholic couple, were denied licensure for foster care and adoption because they did not demonstrate the ability to support the well-being of an LGBTQIA+ child that might be placed with them. The court said in part:

The court concludes it was clearly established, in 2023, that DCF's individualized and discretionary assessment of Plaintiffs' foster license application was not a "generally applicable" policy and thus was subject to strict scrutiny. Under the governing regulations, DCF considers 17 different subjective criteria, all of which must be demonstrated "to the satisfaction of the Department," when deciding on a foster license application. 110 C.M.R. § 7.104(1). One of these requirements, upon which Defendants relied in denying Plaintiffs' application, is "to promote the physical, mental, and emotional well-being of a child placed in his or her care, including supporting and respecting a child's sexual orientation or gender identity."...

 ... [T]he court need not decide, at this stage, whether it was also clearly established that Defendants' conduct would not withstand strict scrutiny analysis under these circumstances.

9th Circuit Hears Oral Arguments on Requiring Adoptive Parents to Support Gender Identity of Adoptees

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full oral arguments) in Bates v. Pakseresht. In the case, an Oregon federal district court rejected plaintiff's free exercise and free speech challenges to the state's denial of her application to be certified to adopt children through the Oregon Department of Human Services.  Plaintiff was denied certification because, consistent with her Christian religious beliefs, she would not agree in advance to support an adoptive child's sexual orientation, gender identity, and gender expression. (See prior posting.) Oregon Capital Chronicle reports on the oral arguments.

New Idaho Law Bars Adverse Action Because of Religious Conduct in Adoption, Foster Care, Licensing and State Contracting

On Monday, Idaho Governor Brad Little signed House Bill 578 (full text) which prohibits state and local governments from treating adversely any adoption or foster care agency that declines to provide services because of a sincerely held religious belief. The new law also provides:

The state government shall not take any discriminatory action against a person who the state grants custody of a foster or adoptive child wholly or partially on the basis that the person guides, instructs, or raises a child, or intends to guide, instruct, or raise a child, based on or in a manner consistent with a sincerely held religious belief. The state government may consider whether a person shares the same religious or faith tradition as a foster or adoptive child when considering placement of the child in order to prioritize placement with a person of the same religious or faith tradition.

The new law goes on to provide that the state cannot deny licensing or the award of a contract to a person because the person believes, maintains policies and procedures, or acts in accordance with a sincerely held religious belief. ADF issued a press release announcing the governor's signing of the bill.

Israel's Top Court OK's Adoption by Same-Sex Couples

 As reported by Times of Israel, a 3-judge panel of Israel's Supreme Court sitting as the High Court of Justice yesterday ruled that under Israel's 1981 adoption law, same-sex couples are eligible to adopt children. The court said in part:

Though the language of clause 3 [of the child adoption law, 1981] is more consistent, on its face, with the interpretation according to which the phrase of ‘a man and his wife together’ refers to heterosexual couples, an interpretation according to which this section also includes same-sex couples does not go beyond the range of possible linguistic interpretations.

This is because examining the phrase in its full linguistic context shows that the language of the section creates a distinction between two general categories: those who belong to a family framework that includes two parents, versus those who seek to adopt into a single-parent family framework. That is, the focus of the section is that it is an adoption by a stable marital framework to which the child will be given, unlike an single [parent framework].

According to Times of Israel, reporting on Acting Supreme Court President Uzi Vogelman's opinion:

He added that historical record showed that when the law was legislated the question of whether same-sex couples were fit to adopt was not considered. Vogelman wrote that the language of the law was devised by the Knesset to determine that it was for the benefit of the child up for adoption to be adopted into a two-parent family, and it was not aimed at making a determination regarding same-sex couples.

Court Upholds Oregon's Rules for Approving Adoptive Parents Over Free Exercise and Free Speech Challenges

In Bates v. Pakseresht, (D OR, Nov. 14, 2023), an Oregon federal district court, in a 53-page opinion, rejected plaintiff's challenge to the state's denial of her application to be certified to adopt children through the Oregon Department of Human Services.  Plaintiff was denied certification because, consistent with her Christian religious beliefs, she would not agree to support an adoptive child's sexual orientation, gender identity, or gender expression. Rejecting plaintiff's free exercise claim, the court said in part:

A willingness to take in an LGBTQ+ child, but disavow their identity, cannot by analogy be compared to a business owner's willingness to provide some services, but not others, to LGBTQ+ individuals. To make such a claim demonstrates a lack of understanding of the importance of providing a child with the holistic support and care required to produce well-rounded and confident adults....

The court also rejected plaintiff's free speech claim, saying in part:

[T]he issue in this case is not that plaintiff is seeking to provide religious instruction to her child. She is seeking to provide religious instruction to a child in the care and custody of the state. She does not possess the same rights as a parent in this situation because the state is the de facto parent. Although plaintiff's ultimate goal is adoption, she is seeking a certification that grants her only the opportunity to house and care for a child under the state's umbrella of protection.

Suit Challenges Oregon Requirement That Adoptive Parents Support Child's Sexual Orientation and Gender Identity

Suit was filed this week in an Oregon federal district court challenging a rule of the state's Department of Human Services that persons seeking to adopt children must agree to accept and support the sexual orientation and gender identity of any child placed with them. The complaint (full text) in Bates v. Pakseresht, (D OR, filed 4/3/2023), contends that the rule violates the free expression, free exercise and equal protection rights of plaintiff whose Christian religious beliefs do not permit her to comply with this requirement.  The complaint reads in part:

Under this rule, caregivers must agree to use a child’s preferred pronouns, take a child to affirming events like Pride parades, or sign the child up for dangerous pharmaceutical interventions like puberty blockers and hormone shots—no matter a child’s age, no matter whether a child actually desires these things, and no matter how deeply these requirements violate the caregiver’s religious convictions.

This puts Jessica in a bind. Like countless people of faith, Jessica believes that our biological sex carries spiritual significance for who we are and how we should act. Jessica cannot affirm that a male is or should try to be female or vice  versa....

... Because she will not agree to use a hypothetical child’s preferred pronouns or facilitate a hypothetical gender transition, she cannot even adopt a newborn who has no concept of, much less a desire for, these things.

ADF issued a press release announcing the filing of the lawsuit.

Texas Sues HHS To Invalidate Rule on LGBTQ Discrimination by Adoption Agencies

Suit was filed yesterday in a Texas federal district court challenging a rule adopted by the Department of Health and Human Services that prohibits adoption and foster care agencies receiving federal funds from discriminating on the basis of sexual orientation or gender identity.  It also requires them to recognize same-sex marriages.  In 2019, amidst other litigation, the government previously issued a Notice of Nonenforcement of this rule. (See prior posting.) However, that Notice is being challenged in other litigation.  The complaint (full text) in State of Texas v. Becerra, (SD TX, filed 12/12/22), contends that the rule by its terms does not apply to child placing agencies that contract with state agencies that initially receive federal grants, and that the rule, for numerous reasons, is an invalid exercise of agency authority. Texas Attorney General Ken Paxton issued a press release announcing the filing of the lawsuit.

Religious Children's Home Lacks Standing To Challenge Now-Defunct HHS Non-Discrimination Rule

 In Holston United Methodist Home for Children, Inc. v. Becerra, (ED TN, Nov. 18, 2022), a Tennessee federal district court held that a religiously affiliated children's home that places children for foster care or adoption lacks standing to challenge a 2016 anti-discrimination rule promulgated by the Department of Health and Human Services. According to the court:

Holston Home requires prospective foster and adoptive parents to affirm a Christian statement of faith and beliefs before they can engage in child-placement activities.... Further, Holston Home does not place children with foster or adoptive parents who are in same-sex relationships or unmarried couples of any biological sex who are romantically cohabitating....

While the challenged rule, promulgated at the end of the Obama Administration, barred such restrictions, HHS policy had undergone successive changes in the Trump and Biden Administrations. These are traced at length in the court's 22-page opinion. In particular the court noted:

Although HHS had not enforced the 2016 Grants Rule since it became effective, on November 19, 2019, HHS published a formal notification in the Federal Register to inform the public that it would not enforce the 2016 Grants Rule after determining that the rulemaking raised “significant concerns about compliance with the Regulatory Flexibility Act [‘RFA’].”...

Because the 2016 Grants Rule is, for all intents and purposes, defunct pursuant to the Notification of Nonenforcement, Holston Home faces no credible threat of prosecution.... Having also failed to show any history of past enforcement of the 2016 Grants Rule, enforcement warning letters, or a feature of the regulation making it easier or more likely to be enforced, Holston Home lacks standing to bring this lawsuit.

SCOTUS Hears Arguments in Indian Child Welfare Act Case

Yesterday the U.S. Supreme Court heard oral arguments in Haaland v. Brackeen. (Audio and transcript of full oral arguments). SCOTUSblog reported on the arguments. At issue is the constitutionality of the Indian Child Welfare Act of 1978 which attempts to prevent child welfare and adoption agencies from placing Native American children outside of their tribe. (SCOTUSblog case page.) A number of commentators have pointed out that issues of religion underlie the controversy in the four consolidated cases heard yesterday. Religion News Service explains, saying that the Act was a reaction to past efforts by the U.S. government to remove Native American children from their homes and place them in boarding schools:

The U.S. is only now reckoning with the history of its boarding schools, which separated generations of children from their families and prohibited them from speaking Native languages, dressing and wearing their hair in traditional styles and taking part in traditional spiritual practices in an effort to assimilate them into the dominant white Christian culture.

Half of boarding schools likely were supported by Christian institutions, according to a report released earlier this year by the U.S. Department of the Interior. A number of denominations are now researching and repenting for their past involvement.

Cuba Referendum Approves Family Code Allowing Same-Sex Marriage and More

AP reports that on Sunday, voters in Cuba approved a new Family Law Code that allows same sex couples to marry and to adopt. The over 400-Article Code also allows surrogate pregnancies and expands grandparent rights. Cuba's evangelical movement opposed the new Code. The Code was approved by 66.9% in favor to 33.1% opposed. [Thanks to Scott Mange for the lead.]

New York Violates Speech Rights of Adoption Agency By Requiring Placement With Unmarried and Same-Sex Families.

In New Hope Family Services, Inc. v. Poole, (ND NY, Sept. 6, 2022), a New York federal district court issued a permanent injunction prohibiting the state of New York from requiring New Hope, a religiously affiliated social service agency, to provide adoption services to unmarried or same-sex couples. The state Office of Children and Family Services contended that New Hope's policy of referring such clients to other agencies violated its anti-discrimination rules. Citing a previous holding by the Second Circuit, the court concluded that "by compelling it to place children with unmarried and same-sex couples, OCFS is necessarily compelling New Hope to engage in the speech required for that conduct...." While agreeing that the state has a compelling interest in avoiding discrimination and increasing the pool of potential adopting families, the court held that OCFS's rule is not narrowly tailored to advance those interests:

New Hope's "recusal-and-referral" practice was a more narrowly tailored means of avoiding discrimination than the closure of New Hope's adoption operation.

Arizona Legislature Passes Bill To Protect Practices Of Faith-Based Adoption Agencies

On Monday, the Arizona legislature sent to the governor for his signature Senate Bill 1399 (full text) which protects adoption and foster care agencies from adverse action when they provide or decline services on the basis of their religious beliefs. It also provides that the state may consider whether a potential foster or adoptive family shares the same religious beliefs or practices as the child being placed. AZ Mirror has extensive reporting on the views of proponents and opponents of the legislation.

In Settlement, Michigan Allows Catholic Charities To Refuse Child Placements With Same-Sex Or Unmarried Couples

In Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (ED MI, March 21, 2022), a Michigan federal district court approved a settlement agreement under which the state of Michigan will allow Catholic Charities, operating under contracts with the state, to refuse to place children for adoption or foster care with same-sex or unmarried couples and refuse to conduct home evaluations for same-sex or unmarried couples. The parties' Agreement says in part:

[A]s a result of the Supreme Court’s decision in Fulton v. City of Philadelphia, 593 U.S. ___ (2021), the Parties agree that Plaintiff would likely prevail on Count V (Free Exercise) of the Complaint.

The state also agreed to pay plaintiffs' attorneys' fees in the amount of $250,000. ADF issued a press release announcing the settlement.

Michigan Settles Suit Over Placement Policy Of Catholic Adoption Agency

 A Michigan federal district court this week in Buck v. Hertel,(WD MI, Jan. 26, 2022), issued an Order implementing a settlement agreement between the state of Michigan and St. Vincent Catholic Charities which is a licensed child placement agency placing children for foster care and adoption. The Order provides in part:

MDHHS shall not take any action against St. Vincent’s CPA license or terminate or not renew the Contracts because St. Vincent does not: i. certify or approve a same-sex or unmarried couple as a foster parent or adoptive parent, or ii. conduct a home evaluation for a same-sex or unmarried couple, or iii. place a foster child with a same-sex or unmarried couple for foster care or adoption.

Under the settlement, the state also agreed to pay St. Vincent's attorneys' fees of $550,000. As reported by Fox 47 News, the state agreed to the settlement after the U.S. Supreme Court's decision in Fulton v. City of Philadelphia

Jewish Couple Challenge Denial Of Services By Christian Foster Care Placement Agency

Suit was filed yesterday in a Tennessee state trial court challenging the state's contracting with a Christian child placement agency that refuses to provide foster parent training to those who do not share its Christian beliefs.  A Jewish couple who were denied services sued, along with several other plaintiffs.  A Tennessee statute enacted in 2020 specifically allows faith-based adoption and foster care agencies to refuse to provide services that violate their religious convictions. The complaint (full text) in Rutan-Ram v. Tennessee Department of Children's Services, (TN Chanc. Ct., filed 1/19/2022), alleges that this religious discrimination violates several provisions of the Tennessee state constitution.  Americans United issued a press release announcing the filing of the lawsuit.

Christian Adoption Agency Sues To Retain Policy Of Placements Only With Married Heterosexual Families

Suit was filed last week in a New York federal district court by a Christian faith-based family services agency seeking to prevent enforcement against it of New York's anti-discrimination laws insofar as they interfere with the agency's policy of refusing to place children for adoption with unmarried or same-sex couples. The complaint (full text) in New Hope Family Services, Inc. v. James, (ND NY, filed 9/17/2021) alleges in part:

In currently ongoing litigation between New Hope and an agency of the State of New York, two federal courts have already found that efforts by the State to force New Hope to change this choice, in violation of its religious beliefs, likely violate both New Hope’s Free Speech rights and its Free Exercise rights, and the district court has already entered a preliminary injunction protecting New Hope’s right and ability to continue to operate and speak in a manner consistent with its beliefs....

[T[he pendency of a governmental investigation and allegations of violations of law quickly damage New Hope’s reputation that was built up over many decades of faithful service, and discourages hospitals, pregnancy resource centers, and social service agencies from referring birthmothers to New Hope to receive adoption services.

ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Refuses Original Suit By Texas Against California

Yesterday, the U.S. Supreme Court in Texas v. California, (Sup. Ct., April 26, 2021), (SCOTUSblog case page) denied the state of Texas leave to invoke the Supreme Court's original jurisdiction to file a bill of complaint against the state of California. USA Today described the background:

California passed a law in 2016 prohibiting taxpayer-funded travel – such as for state employees to attend conferences – to any state that doesn’t ban discrimination on the basis of sexual orientation. Texas law allows foster-care and adoption agencies to deny same-sex couples on religious grounds.

Texas took California directly to the Supreme Court last year, asserting the travel ban was "born of religious animus" and that it violates the Constitution....

The justices had been considering whether to take the suit for months. The court did not explain its decision not to hear the case.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

The practice of refusing to permit the filing of a complaint in cases that fall within our original jurisdiction is questionable, and that is especially true when, as in this case, our original jurisdictional is exclusive. As the history recounted above reveals, the Court adopted this practice without ever providing a convincing justification....

Texas raises novel constitutional claims, arguing that California’s travel ban violates the Privileges and Immunities Clause, U. S. Const., Art. IV, §2, cl. 1, the Commerce Clause, Art. I, §8, cl. 3, and the Equal Protection Clause, Amdt. 14, §1. I express no view regarding any of those claims, but I respectfully dissent from the Court’s refusal even to permit the filing of Texas’s complaint.

Court Enjoins NY Ban On Adoption Agencies Discriminating Against Gay Or Unmarried Couples

In New Hope Family Services, Inc. v. Poole, (ND NY, Oct. 5, 2020), a New York federal district court, hearing a case on remand from the Second Circuit (see prior posting), issued a preliminary injunction against enforcement of a regulation of New York's Office of Children and Family Services. 18 NYCRR §421.3 bars discrimination based on sexual orientation or marital status in furnishing of adoption services. The regulation was challenged by a Christian adoption agency that refuses to place children with unmarried or same-sex couples.  The court said in part:

[T]he totality of the evidence indicates that section 421.3(d), as promulgated and enforced by OCFS, is not neutral and appears to be based on some hostility towards New Hope's religious beliefs. In light of the Second Circuit's all but explicit direction, the Court finds that the totality of the evidence weighs in favor of a finding of hostility. In finding hostility, the Court relies on a number of factors that the Circuit noted in its decision.....

The Court finds that by attempting to force New Hope to say that it is in a child's best interests to be placed with an unmarried or same sex couple, despite New Hope's sincere disagreement with that statement, OCFS is attempting to compel speech. Although OCFS argues that New Hope is not compelled to speak because there is an alternative, closure is surely a harsh alternative for New Hope and, as discussed below, it is not the most narrowly tailored means of advancing the state's compelling interests....

Washington Times reports on the decision.

2nd Circuit: Free Speech and Free Exercise Claims of Christian Adoption Agency Can Move Forward

In New Hope Family Services, Inc. v. Poole, (2d Cir., July 21, 2020), the U.S. 2nd Circuit Court of Appeals, in an 84-page opinion, reversed the dismissal of free exercise and free speech claims brought by a Christian adoption agency.  The court summarized the issues:

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 antidiscrimination 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.

In reversing and remanding the case to the district court, the 2nd Circuit said in part as to plaintiff's free exercise claim:

[W]e 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. 

In connection with plaintiff's free speech claim, the court said:

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....

AP reports on the decision.

Executive Order Encourages State Cooperation With Faith-Based Child Welfare Agencies

President Trump yesterday signed an Executive Order (full text) on Strengthening the Child Welfare System. The Order encourages "close partnerships between State agencies and nongovernmental organizations, including public, private, faith-based, and community groups." (HHS press release).