A federal court ruling in New York this week could point to eventual victory at the Supreme Court for Catholic foster care placement in Philadelphia.
On Tuesday, the Second Circuit federal appeals court granted New Hope Family Services, a Christian adoption provider in Syracuse, New York, protection from a state order that threatened it with closure.
New Hope had a faith-based “recusal-and-referral” policy of declining to recommend children for unmarried or same-sex couples, while referring such cases to other agencies. The state’s Office of Children and Family Services required New Hope to not decline such cases. New Hope has served 1,000 children over a span of 50 years in its adoption services.
The adoption provider lost its case before a district court, which ruled that it failed to make a case that its First Amendment rights were violated by the state order.
However, a three-judge panel for the Second Circuit on Tuesday put a temporary stay on the state’s order.
While the court did not yet decide the “ultimate question” in the case, it acknowledged that New Hope made a “plausible claim” that its First Amendment religious and free speech rights were violated. The panel of judges also said that the state’s action may have been “informed by hostility toward certain religious beliefs.”
Both Becket and Alliance Defending Freedom, legal groups that defend religious freedom, said the decision bodes well for another case currently before the U.S. Supreme Court—that of the adoption placement services of Catholic Charities of the Archdiocese of Philadelphia.
In Fulton v. Philadelphia, Catholic Social Services of the Archdiocese of Philadelphia (CSS) was told in 2018 that the city of Philadelphia would no longer be referring foster children through the agency.
The decision was due to the faith-based stance of CSS on marriage, even though there had been no claims of discrimination of same-sex couples that were brought against the agency. The city required CSS to agree to match children with same-sex couples.
As the city has a monopoly on the area foster care system, CSS has no new foster care contracts and has already begun laying off employees.
Two foster mothers who worked with CSS sued the city, and are represented by Becket. The case is scheduled to be heard by the Supreme Court in the fall 2020 term.
The court’s decision on Tuesday gives credence to the policies of religious adoption and foster care placement agencies, Becket and ADF argued.
“Courts can see that these religious adoption and foster agencies are doing outstanding work to serve the neediest kids, and have been doing it for a very long time, and that there’s absolutely no need for the government to go after them just because of their religious beliefs about marriage,” Luke Goodrich, vice president and senior counsel at Becket, told CNA.
“When the government singles out religious groups, just because of their religious beliefs about marriage, that’s unconstitutional and it’s actually deeply harmful to children,” Goodrich said.
ADF’s vice president of appellate advocacy John Bursch said in a public statement that "government officials are not being neutral when they single out religious organizations for hostile treatment based on their beliefs about marriage. That’s a flagrant violation of the U.S. Constitution.”
New Hope’s case dates back to a 2013 state regulation that barred discrimination on the basis of sexual orientation or gender identity against applicants for adoption services.
For five years after the regulation, New Hope practiced its “recusal-and-referral” policy of declining to match children with unmarried and same-sex couples while referring them to other agencies.
During this time, the state’s family services office “voiced no objection,” the court said, until in 2018 it ordered New Hope to match children with unmarried and same-sex couples or be forced to close. This was an “abrupt” and “as yet unexplained” act by the state, the court ruled on Tuesday, and combined with the order was enough to “raise a sufficient suspicion of hostility toward New Hope’s particular religious beliefs to warrant further inquiry.”