MEMORANDUM-DECISION AND ORDERI. INTRODUCTION Plaintiff New Hope Family Services, Inc. (“New Hope”) commenced this civil rights action on December 6, 2018 challenging the constitutionality of the New York Office of Children and Family Services (“OCFS”) interpretation and application of 18 N.Y.C.R.R. §421.3(d). See Dkt. No. 1. Currently before the Court are Plaintiff’s motion for a preliminary injunction and Defendant’s motion to dismiss. See Dkt. Nos. 15 & 34. II. BACKGROUNDA. Regulatory SchemeIn September 2010, New York State amended its Domestic Relations Law to codify the right to adopt by unmarried adult couples and married couples regardless of sexual orientation or gender identity. See 2010 S.B. 1523, Ch. 509; N.Y. Dom. Rel. Law §110. In January 2011, the OCFS informed authorized adoption agencies in New York that the amendment brought the Domestic Relations Law into compliance with existing case law and was “intended to support fairness and equal treatment of families that are ready, willing and able to provide a child with a loving home.” After providing further guidance, adoption agencies were advised that, among other things, “discrimination based on sexual orientation in the adoption study assessment process is prohibited.”In November 2013, OCFS promulgated 18 N.Y.C.R.R. §421.3(d) which, in accordance with existing law, prohibits “discrimination and harassment against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability” and requires that agencies authorized by New York to provide adoption services “shall take reasonable steps to prevent such discrimination or harassment by staff and volunteers, promptly investigate incidents of discrimination and harassment, and take reasonable and appropriate corrective or disciplinary action when such incidents occur.” 18 N.Y.C.R.R. §421.3(d).Agencies authorized to provide adoption services in New York must receive and respond to inquiries from, conduct orientation sessions for, and offer OCFS-approved applications to prospective parents. See 18 N.Y.C.R.R. §421.15. After an adoption application is received, an adoption study must be completed. See id. at §421.13. An adoption study must explore the following characteristics of prospective parents:(1) capacity to give and receive affection;(2) ability to provide for a child’s physical and emotional needs;(3) ability to accept the intrinsic worth of a child, to respect and share his past, to understand the meaning of separation he has experienced, and to have realistic expectations and goals;(4) flexibility and ability to change;(5) ability to cope with problems, stress and frustration;(6) feelings about parenting an adopted child and the ability to make a commitment to a child placed in the home; and(7) ability to use community resources to strengthen and enrich family functioning.Id. at §421.16(a). An application may only be rejected if (1) an applicant does not cooperate with the adoption study; (2) an applicant is “physically incapable of caring for an adoptive child;” (3) an applicant is “emotionally incapable of caring for an adopted child;” or (4) an applicant’s approval “would not be in the best interests of children awaiting adoptions.” Id. at §421.15(g). Once an application is approved, the agency must add the applicant to the adoptive parent registry. See id. at §§421.15(i), 424.3(a).Whether the adoption of a particular child by a particular prospective adoptive parent should be approved must be made “on the basis of the best interests of the child.” 18 N.Y.C.R.R. §421.18(d). In making placement decisions, the agency must consider, among other things, (1) the ages of the child and prospective parent(s); (2) “the physical and emotional needs of the child in relation to the characteristics, capacities, strengths and weaknesses of the adoptive parent(s);” (3) “the cultural, ethnic or racial background of the child and the capacity of the adoptive parent to meet the needs of the child with such a background;” and (4) the ability of a child to be placed in a home with siblings and half-siblings. See id. Additionally, agencies must[m]ake an effort to place each child in a home as similar to and compatible with his or her religious background as possible with particular recognition that section 373(3) of the Social Services Law requires a court, when practicable, to give custody through adoption only to persons of the same religious faith as that of the child.Id. at §421.18(c). Further, the Social Services Law provides that, “so far as consistent with the best interests of the child, and where practicable,” the religious wishes of the birth parents should be honored. See N.Y. Soc. Serv. Law §373(7).B. New Hope Family ServicesWhen an entity seeks to facilitate adoptions in New York, it must qualify as an “authorized agency” under the law before it may provide those services. See N.Y. Soc. Serv. Law §371(10)(a); N.Y. Soc. Serv. Law §374(2). New Hope is an “authorized agency” with the authority to “place out or to board out children…,” N.Y. Soc. Serv. Law §371(10)(a), and “receive children for purposes of adoption.” N.Y. Dom. Rel. Law §109(4). As an “authorized agency,” New Hope must be “incorporated or organized under the laws of this state with corporate power or empowered by law to care for, to place out or to board out children…[and] shall submit and consent to the approval, visitation, inspection and supervision of such office as to any and all acts in relation to the welfare of children performed or to be performed under this title.” N.Y. Soc. Serv. Law §371(10)(a). Additionally, OCFS must approve an agency’s certificate of incorporation. See id. at §460-a.C. The ComplaintIn 1958, Pastor Clinton H. Tasker founded what became New Hope Family Services as a Christian ministry to care for and find adoptive homes for children whose birth parents could not care for them. See Dkt. No. 1 at3. New Hope dedicates a considerable portion of the complaint setting forth its religious beliefs, which the Court will not fully recount here. The Court fully accepts that New Hope and its employees have these sincerely held religious beliefs.It is because of these religious beliefs that “New Hope will not recommend or place children with unmarried couples or same sex couples as adoptive parents.” Id. at153. New Hope’s “Special Circumstances” policy states in part as follows:If the person inquiring to adopt is single…[t]he Executive Director will talk with them to discern if they are truly single or if they are living together without the benefit of marriage…because New Hope is a Christian Ministry it will not place children with those who are living together without the benefit of marriage.If the person inquiring to adopt is in a marriage with a same sex partner…([t]he Executive Director will…explain that because New Hope is a Christian Ministry, we do not place children with same sex couples).Id. at154.New Hope claims that it has worked with unmarried individuals who are truly single in the past and remains willing to work with such individuals. See id. at155. Further, New Hope claims that because it “handles inquiries from unmarried couples and same-sex couples pursuant to the policy and practice described above, New Hope has never denied an unmarried couple or same-sex couple’s application.” Id. at156. “Whenever a same-sex couple or unmarried couple is interested in a referral, New Hope refers them to the appropriate county social services office or another provider.” Id.Until recently, New York adoption law required that authorized agencies could only place children for adoption with “an adult unmarried person or an adult husband and his adult wife.” N.Y. Dom. Rel. Law §110 (2009). As mentioned above, in September 2010, New York amended its law to allow authorized agencies to place children for adoption with “an adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together.” N.Y. Dom. Rel. Law §110 (2010). New Hope notes that permissive language is used throughout the amended law and claims that “New York has never amended its law to require authorized agencies to place children for adoption with ‘an adult unmarried person,’ a same-sex ‘adult married couple together,’ or ‘two unmarried adult intimate partners together.’” Dkt. No. 1 at163 (emphasis in original). New Hope contends that “OCFS is attempting to use regulations to require exactly that: on July 11, 2011, OCFS issued a second letter that purported to clarify, but in fact materially changed, the adoption regulations then found in 18 NYCRR 421.16 and subpart (h). In that letter, OCFS declared that ‘the intent of’ subpart (h) ‘is to prohibit discrimination based on sexual orientation in the adoption study assessment process. In addition, OCFS cannot contemplate any case where the issue of sexual orientation would be a legitimate basis, whether in whole or in part, to deny the application of a person to be an adoptive parent.’” Id. at164 (quoting Office of Children & Family Services, Informational Letter, 11-OCFS-INF-05 (July 11, 2011)).In 2013, OCFS amended the adoption regulations, declaring that authorized agencies, “providing adoption services shall…(d) prohibit discrimination and harassment against applicants for adoption services on the basis of race, creed, color, national origin, age, sex, sexual orientation, gender identity or expression, marital status, religion, or disability….” 18 N.Y.C.R.R. §421.3 (2018). Following the 2013 changes, OCFS issued another informational letter in 2016 which stated as follows:[T]his policy directive requires the formalization of any existing nondiscrimination and harassment policies and procedures, and possibly the revision of such policies and procedures, by requiring that…[voluntary agencies]…not engage in or condone discrimination…on the basis of race, creed, color, national origin, sex, religion, sexual orientation, gender identity or expression, marital status or disability against…applicants for adoption services,…prospective foster parents, foster parents, or children in foster care.Dkt. No. 1 at167. New Hope claims that OCFS promulgated these new regulations “purporting to require adoption providers to place children with unmarried and same-sex couples in complete disregard for the law, the scope of OCFS’ authority, and the rights of adoption providers.” Id. at168.In January or February of 2018, Suzanne Colligan of OCFS called New Hope’s then Acting Executive Director, Judith A. Geyer. See id. at182. During the call, Ms. Colligan conveyed that, under a new policy implemented in 2018, OCFS would be conducting comprehensive on-site reviews of each private provider’s procedures. See id. On July 18, Ms. Colligan sent an email to Ms. Geyer to schedule the adoption program review and included a list of things she needed to review, including New Hope’s policies and procedures. See id. at183. Based on Ms. Colligan’s direction that she would need a copy of New Hope’s policies and procedure manual, Ms. Geyer updated New Hope’s formal policies and procedures on adoption into one consolidated manual. See id. at184.On August 28, Ms. Geyer received an email from Ms. Colligan, stating in part:I also thought that it might be helpful for you to see the application we use with agencies requiring reauthorization for corporate authority. Since you are authorized in perpetuity, your agency is not required to complete/submit this form. However, I will be asking many of the program questions on it, so you may find it helpful in preparing for my visit.Dkt. No. 1 at185.On September 6, 2018, Ms. Colligan met with Ms. Geyer and Kathy Decesare, New Hope’s Center Director, and took a copy of New Hope’s policy and procedure manual with her when she left. See id. at186. On October 1, 2018, OCFS sent a letter to Ms. Geyer that praised a number of strengths in New Hope’s program, thanked New Hope for its professionalism during the meeting, and suggested a follow-up meeting to discuss a few opportunities for improvement. See id. at187. On or about October 9, 2018, Ms. Geyer received a call from Ms. Colligan. During the call, Ms. Colligan stated that she had been reading New Hope’s policies and procedures manual and that New Hope’s policy not to place children with those who are living together without the benefit of marriage or with same-sex couples violated 18 N.Y.C.R.R. §421.3. See id. at188. New Hope claims that Ms. Colligan told Ms. Geyer that New Hope would have to comply with §421.3 by placing children with unmarried couples and same-sex couples. See id. at189. Further, Ms. Colligan stated that if New Hope did not comply, New Hope would be “choosing to close.” Id. at190. Ms. Geyer responded that New Hope would be unwilling to violate its religious beliefs by placing children with unmarried or same-sex couples. See id. at191. Ms. Colligan responded by stating that “‘[s]ome Christian ministries have decided to compromise and stay open.’” Id. at192. Ms. Colligan informed Ms. Geyer that she would be getting a letter from OCFS mandating compliance by a specific date. See id. at194.On October 11, 2018, Ms. Colligan emailed Ms. Geyer, stating in part as follows:You will be receiving a letter from our office soon requesting a formal written response regarding your agency’s position. When OCFS receives written notification of an agency’s intention to close a program, OCFS will respond with written instructions to the agency with the steps they must take. These steps include the agency’s responsibility to seek and obtain agreement with another NYS authorized agency to maintain and store their adoption records, of which includes the handling of activities outlined in the legally bound agreements with birth parents.Id. at195.On October 12, 2018, Ms. Colligan sent an email to Ms. Geyer stating that “[w]e will put Monday’s follow up meeting [to discuss a few minor improvements identified during the visit] on hold for now. The purpose of the follow up meeting would be to work on the necessary changes to your agency policy manual. Based on our recent phone call, the follow up meeting for those purposes does not appear needed at this time.” Id. at196. On October 17, 2018, Ms. Colligan indicated in an email to Ms. Geyer that she had mailed out a certified letter. That email stated that “[o]nce the letter is returned providing us with written notice of your intent, we will send out a letter outlining our expectations around the handling of those that you are currently providing services and the adoption records.” Id. at197.On October 26, 2018, Ms. Geyer received an electronic copy of the letter to which Ms. Colligan had referred. The letter stated that New Hope’s policy pertaining to “not placing ‘children with those who are living together without the benefit of marriage’ or ‘same-sex couples’ violates Title 18 NYCRR §421.3.” Dkt. No. 1 at198. The letter further stated:OCFS hereby requests a formal written response from [New Hope] stating the agency’s position in regard to revising this policy to eliminate those portions that violate the above-cited regulation. Please respond within 15 days of receipt of this letter indicating specifically whether [New Hope] intends to revise the present policy and continue the existing adoption program, or that [New Hope] will not revise the policy so as to comply with the above-cited regulation. Please be aware that should the agency fail to bring the policy into compliance with the regulation, OCFS will be unable to approve continuation of [New Hope's] current adoption program and [New Hope] will be required to submit a close-out plan for the adoption program.Id. (quoting Dkt. No. 1-7). New Hope was given until November 30, 2018 to respond to OCFS’ letter. See id. at199.D. Procedural HistoryOn December 6, 2018, filed its complaint alleging that OCFS has violated various constitutional rights protected by the First and Fourteenth Amendments. See Dkt. No. 1. In its first cause of action, New Hope contends that OCFS’ interpretation and enforcement of 18 N.Y.C.R.R. §421.3(d) “targets, shows hostility toward, and discriminates against New Hope because of its religious beliefs and practices” in violation of the First Amendment’s Free Exercise Clause. See id. at
230-263. In its second cause of action, New Hope argues that applying “section 421.3(d) to New Hope requires New Hope to engage in speech and expression that it does not wish to convey — speech and expression that violates its core religious beliefs — by compelling it to recommend same-sex couples or unmarried couples as adoptive parents” in violation of the First amendment. See id. at
