A federal judge has ruled that New York’s child welfare agency cannot revoke the operating license of a Christian adoption agency due to its policy of referring same-sex and unmarried couples to other agencies.
In 2013, the state’s Office of Children and Family Services issued regulations prohibiting “discrimination and harassment against applicants for adoption services” on the basis of sex, sexual orientation, gender identity or expression and marital status, among other protected classes.
Five years later, New Hope Family Services filed suit against the state’s child welfare commissioner, after licensing officials ordered the agency to revise its policy of referring same-sex or unmarried couples. The state office maintained that if the small private provider based in Syracuse failed to do so, it would “be required to submit a close-out plan for the adoption program.”
New Hope’s practices have now been upheld by the courts. This week, U.S. District Court Judge Mae D’Agostino ruled that the Office of Children and Family Services could not insist that New Hope change its policy, due to the First Amendment’s protections against compelled speech. The judge for the Northern District in Albany also rejected the state’s arguments that it was regulating conduct — and not speech — or that its actions were necessary to maintain a sufficient number of potential adoptive homes for vulnerable children.
In a statement, an attorney for the Alliance Defending Freedom hailed D’Agostino’s decision that allows New Hope to continue its decades-old adoption program.
“The court’s decision is great news for children waiting to be adopted and for the parents partnering with New Hope Family Services to provide loving, stable homes,” stated Senior Counsel Roger Brooks. “New Hope is a private religious ministry that doesn’t take a dime from the government.” Brooks added that “shutting down an adoption provider for its religious beliefs — needlessly and unconstitutionally reducing the number of agencies willing to help — benefits no one — certainly not children.”
In response to emailed questions about the possibility of appeal, the state’s child welfare agency said it was still considering how to move forward.
“The New York State Office of Children and Family Services is deeply disappointed with the decision and maintains that discrimination on any basis should not be tolerated,” a spokesperson stated in an email. “We’re reviewing our options for next steps.”
The Alliance, a prominent Arizona-based Christian conservative legal nonprofit, has represented clients like New Hope around the country. The group is better known for its Supreme Court litigation in support of expanding constitutional boundaries for religious expression and narrowing LGBTQ and abortion rights.
In the upstate New York case, the Office of Children and Family Services failed to convince Judge D’Agostino that New Hope — which had a license from the state but not a paid contract — was a government program exempt from First Amendment protections. The court also found New Hope’s “narrowly tailored” referral approach was less harmful than simply turning couples away, and, on balance, less harmful than the state shutting down their whole operation. D’Agostino noted in her ruling that the state never produced “actual evidence” of complaints from couples, or couples denied or severely delayed service, as a result of New Hope’s practice prior to and throughout the yearslong litigation.
The leader of the state’s largest local child welfare agency, New York City’s Administration for Children’s Services, which created one of the nation’s first local anti-discrimination policies for child welfare, echoed the state’s disappointment over the ruling.
Commissioner Jess Dannhauser stated that his agency will work closely with the state on the issue. He described the court decision as problematic “as it denies some of the most vulnerable children the opportunity to be cared for by loving foster, potentially adoptive, parents.”
The ruling Tuesday follows a 2020 appeals court ruling in favor of New Hope, allowing the case to move forward. That Second Circuit decision noted “sufficient ‘suspicion’ of religious animosity.”
“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,” the three-judge panel ruled.
The latest and final decision by federal Judge D’Agostino follows a high-profile U.S. Supreme Court ruling last year, which allowed a Philadelphia nonprofit “to restrict its home studies for foster care and adoption to only those couples meeting traditional heterosexual standards.” That ruling, Fulton v. The City of Philadelphia, was not cited in D’Agostino’s ruling in the New Hope case, however.
According to Family Equality, a national advocacy group that has fought to assist LGBTQ foster parents, in 2018, same-sex couples had taken in 3% of all foster children and 4% of adopted children — a significant number in a field desperate for more temporary homes for abused and neglected children. Social science researchers have found that millions more such couples are capable, ready and willing, if allowed the opportunity.