New Hope Family Services, Inc. v. Poole

Majority - Reena Raggi, Circuit Judge

Yes, a state regulation, even if facially neutral, plausibly violates a religious adoption agency's First Amendment rights if its enforcement suggests religious animosity or impermissibly compels speech or association, thus precluding dismissal at the pleadings stage. The Second Circuit reversed the district court's dismissal of New Hope's Free Exercise and Free Speech claims, finding them plausible enough to survive the pleadings stage under the Employment Division v. Smith standard, even before the Supreme Court's expected review of Smith. The court found a 'slight suspicion' of religious animosity warranting discovery for several reasons: 1. Disconnect from underlying statute: N.Y. Dom. Rel. Law § 110, which OCFS’s regulation purports to implement, is permissive regarding who 'may adopt' and was specifically intended by the Governor not to compel agencies to alter existing policies or 'tread[] on the views of any citizen or organization.' OCFS's regulation, however, is mandatory and affords no accommodation. 2. Abrupt change in OCFS stance: For five years, OCFS did not object to New Hope’s recusal and referral practice, which allowed it to avoid directly 'discriminating' while still adhering to its religious beliefs. The sudden 'comply-or-close' ultimatum raises suspicion of hostility towards New Hope’s particular religious beliefs, particularly given OCFS's awareness of its longstanding practice. 3. Statements by OCFS personnel: OCFS officials' statements, such as advising 'some Christian ministries have decided to compromise and stay open' and that 'there is no place for providers that choose not to follow the law,' are similar to statements the Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission viewed as potentially evidencing religious hostility. These statements, when viewed most favorably to New Hope, suggest OCFS did not believe New Hope’s religious beliefs could legitimately operate in the 'public sphere.' 4. Severity of OCFS’s action: Ordering a 50-year, privately funded, un-complained-about adoption ministry to close is a severe step, especially when OCFS’s specific statutory authority for such an order, beyond the limited grounds in N.Y. Soc. Serv. Law § 385(1), is unclear. This severity adds weight to the claim of hostility. 5. Disproportionate impact: The alleged forced closure of several other faith-based adoption agencies with similar beliefs suggests the regulation's 'real operation' disproportionately affects religious organizations, raising suspicion of targeting. Regarding the Free Speech claim, the court rejected the district court’s conclusion that New Hope’s speech constituted 'government speech.' The court noted New Hope is not government-funded, has a distinct private religious identity, and there is no evidence the public attributes its speech to the state. The court also found it premature to conclude that New Hope's speech was not compelled. New Hope's services are 'laden with speech,' including making 'best interests' recommendations based on its beliefs. Compelling it to approve placements for unmarried or same-sex couples would necessarily compel speech (the 'best interests' determination) contrary to its religious views and could restrict its ability to voice those views. Given the broad discretion afforded to adoption agencies in making 'best interests' determinations, their approvals inherently convey a judgment beyond mere compliance with state regulations, thereby also plausibly impairing its expressive association. The court found Fulton v. City of Philadelphia distinguishable because New Hope is not government-contracted/funded and the issue here is plausibility at the pleading stage, not likelihood of success for an injunction.