Before: Cabranes, Raggi, C.JJ., Korman, D.J.*
On Appeal from the United States District Court for the Northern District of New York Plaintiff, 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 anti-discrimination 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. Rather than do either, New Hope sued OCFS in the United States District Court for the Northern District of New York (D’Agostino, J.) for violations of its First and Fourteenth Amendment rights. It now appeals from a judgment dismissing its complaint for failure to state a claim and denying its motion for a preliminary injunction as moot. New Hope argues that the district court erred in concluding that it failed to state plausible claims for violations of its rights of Free Exercise of Religion and Free Speech and, therefore, in rejecting its preliminary injunction motion as moot. New Hope urges this court both to reinstate these claims and to grant it preliminary injunctive relief. We agree that New Hope’s Free Exercise and Free Speech claims should not have been dismissed at the pleadings stage and, therefore, that its preliminary injunction motion is not moot. We remand the case to the district court for further proceedings consistent with this opinion, including whether to grant New Hope a preliminary injunction preventing OCFS from mandating the closure of New Hope’s adoption operation while the merits of this case are litigated. Pending the district court’s ruling on that preliminary injunction motion, the narrow injunction granted by this court shall remain in effect. REVERSED IN PART, VACATED IN PART, AND REMANDED. REENA RAGGI, C.J. An important question of law animates this case: What is the proper relationship between the First Amendment — specifically, its guarantees of free exercise of religion and free speech — and laws protecting against various forms of discrimination? The question has arisen most recently when religious organizations, like Plaintiff here, seek some exemption from laws prohibiting discrimination on the basis of sexual orientation, arguing that such laws compel them to speak and behave contrary to the dictates of their consciences. The answer to this question — whether, in particular circumstances, anti-discrimination laws violate First Amendment rights — may profoundly affect our system of ordered liberty.1 But at this early stage in the case, we need not answer that ultimate question. Instead, we need decide only whether Plaintiff has stated a plausible claim for the violation of its First Amendment rights, affirming the district court if we conclude that Plaintiff has not stated a plausible claim, or reversing if we conclude that Plaintiff has. Plaintiff, New Hope Family Services, Inc. (“New Hope”), is a voluntary, privately funded Christian ministry located in Syracuse, New York. Its avowed mission is to assist women with unplanned pregnancies and to provide temporary foster care and adoptive homes for children whose birth parents cannot care for them. In its more than 50 years of operation, New Hope has placed approximately 1,000 children with adoptive parents. There appears to be no question that each of these placements has been in the best interests of the adopted child. While New Hope operates under a certificate of incorporation authorizing it to provide adoption services in New York State, it has no contract with any government entity, and it does not receive any public funding. At issue on this appeal is whether New Hope will be permitted to continue its adoption ministry in New York State. That comes into question because New Hope’s ministry is informed by its religious belief in the biblical model of marriage as one man married for life to one woman. New Hope asserts that, consistent with this belief, it cannot recommend adoption by unmarried or same-sex couples because it does not think such placements are in the best interests of a child. Accordingly, it does not itself work with such couples but, rather, refers them to other adoption agencies. In 2018, officials of the New York State Office of Children and Family Services (“OCFS”) informed New Hope that such a policy violates a 2013 state regulation prohibiting discrimination 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….” N.Y. Comp. Codes R. & Regs. tit. 18 (“18 NYCRR”), §421.3(d) (emphases added). OCFS officials told New Hope that it either had to change its policy to conform to the regulation or close its adoption operation. Unwilling to do either, New Hope initiated this action in the United States District Court for the Northern District of New York (Mae A. D’Agostino, Judge). Pursuant to 42 U.S.C. §1983, New Hope charged OCFS’s Acting Commissioner Sheila J. Poole with violating its rights under the Constitution’s Free Exercise of Religion, Free Speech, and Equal Protection Clauses, see U.S. CONST. amends. I, XIV, and requested declaratory and injunctive relief.2 On cross-motions by New Hope for a preliminary injunction and by OCFS for dismissal, the district court granted dismissal pursuant to Fed. R. Civ. P. 12(b)(6), concluding that New Hope failed to plead any plausible constitutional claims. Consequently, the court denied New Hope’s preliminary injunction motion as moot. See New Hope Family Servs. Inc. v. Poole, 387 F. Supp. 3d 194 (N.D.N.Y. 2019). New Hope appeals from so much of the district court judgment, entered on May 16, 2019, as dismissed its Free Exercise and Free Speech claims and rejected its preliminary injunction motion. For the reasons stated in this opinion, we reverse the challenged dismissal judgment, vacate the denial of New Hope’s motion for a preliminary injunction, and remand the case to the district court for further proceedings consistent with this opinion, including consideration of whether to grant a preliminary injunction. I. Background In recounting the background to this case, we follow the standard applicable to the review of motions to dismiss, i.e., we accept all factual allegations pleaded by New Hope in its complaint as true, and we draw all reasonable inferences in its favor. See, e.g., DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 110-11 (2d Cir. 2010). A. New York Adoption Law Private charities — many of them religiously affiliated — have long played an important role in caring for orphans and abandoned children in New York.3 Adoption in New York, however, is now “solely the creature of…statute,” Matter of Jacob, 86 N.Y.2d 651, 657 (1995) (internal quotation marks omitted), and requires “a judicial proceeding” for a person (or couple) to “take[] another person into the relation of child and thereby acquire[] the rights and incur[] the responsibilities of parent in respect of such other person,” N.Y. Dom. Rel. Law §110. Since first enacted in 1873, New York’s adoption law has had as its primary purpose ensuring the “best interest[s]” of the child to be adopted. Matter of Jacob, 86 N.Y.2d at 658-59. But if that objective has remained constant, not so the factors informing it. Over a century and a half, New York’s adoption law has been amended “ innumerable times,” such that its many requirements and prohibitions — both those established by statute and those propounded by regulation — have aptly been described as “a complex and not entirely reconcilable patchwork.” Id. at 659. Nevertheless, because some understanding of that law is necessary to discuss New Hope’s claims, we begin by discussing relevant statutory and regulatory provisions, starting with those pertaining to authorized adoption agencies. 1. Authorized Agencies Adoption services in New York can only be provided by “authorized agencies,” i.e., entities incorporated or organized under New York law with corporate or legal authority “to care for, to place out or to board out children.” N.Y. Soc. Serv. Law §§371(10)(a), 374(2).4 More than 130 authorized agencies presently operate in New York. Fifty-eight such agencies are public, each operating as a unit of one of the State’s social services districts. More than 70 authorized agencies are private, non-profit organizations that voluntarily provide adoption services. Some do so pursuant to contracts with local social services districts and with government funding; others, such as New Hope, operate independently. The need for adoption services in New York, whether public or private, is undeniably great. In fiscal year 2017, more than 27,000 children in the State were in foster care. Some 4,400 were awaiting adoption. Nevertheless, only 1,729 were actually adopted that year. To facilitate adoptions, state law empowers authorized agencies to receive legal custody of children whose parents cannot care for them. Id. §384; 18 NYCRR §421.6. Authorized agencies can then board such children in foster homes or place them in prospective adoptive homes based on the agencies’ assessment of the children’s “best interests.” Most relevant here, authorized agency approval, or consent, is required to finalize the adoption of any child placed by that agency. See N.Y. Dom. Rel. Law §§111(1)(f), 113(1). A thicket of regulations applies to an authorized agency’s placement of a child for adoption. These regulations detail numerous areas for agency consideration, but they comprise no mere quantitative checklist. Rather, most regulations, by their nature, entrust authorized agencies with considerable discretion in determining the best interests of a child. For example, agencies are instructed that in “[m]ak[ing] placement decisions,” a consideration of the child’s “best interests” shall “includ[e], but [is] not limited to” three factors. 18 NYCRR §421.18(d). First is “the appropriateness of placement in terms of the age of the child and of the adoptive parent(s).” Id. §421.18(d)(1). “Appropriateness” is hardly a matter of mathematical calculation; rather, it calls for the exercise of judgment. That same conclusion obtains for the second factor: “the physical and emotional needs of the child in relation to the characteristics, capacities, strengths and weaknesses of the adoptive parent(s).” Id. §421.18(d)(2). Judgment is also called for by the third factor, which requires placing sibling children together absent documented findings, made by the agency in consultation with identified professionals, that such placement would inure to the detriment of one or more of the children. See id. §421.18(d)(3). Judgment and discretion also necessarily inform the “adoption study process” that must precede any placement. Id. §421.15. This is evident from the litany of topics that an authorized agency is expected to discuss in “explor[ing] each applicant’s ability to be an adoptive parent.” Id. §421.15(d). Among these are the “characteristics and needs of children available for adoption”; principles of child development; the applicant’s “reasons” for wishing to adopt; “understanding of the adoptive parent role”; “psychological readiness to assume responsibility for a child”; and “self-assessment” of “capacity to provide a child with a stable and meaningful relationship.” Id. The agency is further expected to explore other household members’ “attitudes…about adoption,” and “the[ir] awareness of the impact that adoptive responsibilities have upon family life.” Id. Again, none of these matters is quantifiable; rather, they call for qualitative assessments by authorized agencies. Agency judgment will also have to inform the required assessment of a prospective adoptive parent’s, (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. §421.16(a). While this sampling of applicable regulations indicates a largely holistic approach to identifying the best interests of an adopted child, regulations single out certain factors that should not be considered or, at least, not be determinative. For example, a prospective adoptive parent cannot “be rejected on the basis of low income, or because of receipt of income maintenance payments.” Id. §421.16(j). Nor can rejection be based on marital status, subject to certain caveats. Id. §421.16(d).5 “Race, ethnic group, and religion” also cannot be a basis for rejection, id. §421.16(i), though here too other statutory and regulatory provisions appear to qualify the prohibition.6 At the same time, regulations instruct an agency to reject adoption applicants who fail to cooperate in the study process. See id. §421.15(g)(1). Rejection is also warranted if the agency finds an applicant “physically” or “emotionally” “incapable of caring for an adopted child,” id. §421.15(g)(2)(i)-(ii), or if the agency concludes that “approval would not be in the best interests of children awaiting adoptions,” id. §421.15(g)(2)(iii) — both matters requiring an exercise of judgment. Rejection, however, triggers certain procedural safeguards, including the opportunity for a hearing before OCFS. See id. §421.15(g)(3)-(8). On the other hand, if, after completion of the required study, an authorized agency decides to approve adoption by a particular applicant or applicants — thereby concluding that adoption by that applicant or applicants is “in the best interests of children awaiting adoptions,” id. §421.15(g)(2)(iii) — the agency creates “a written summary of the study findings and activities, including significant characteristics of…family members, the family interaction, the family’s relationship to other persons and the community, the family’s child rearing practices and experiences, and any other material needed to describe the family for adoption purposes,” and provides that summary “to workers in the agency…responsible for making placement decisions about children,” id. §421.15(e)(1). The agency works with the approved prospective parents to identify an adoptive child to be placed with them, “[m]ak[ing] placement decisions on the basis of the best interests of th[at] child.” Id. §421.18(d). The agency and prospective parents then submit to a court a verified petition for adoption and an adoptive placement agreement, see N.Y. Dom. Rel. Law §112(2)-(3), (5), and the court decides whether to accept the agency’s approval and to order adoption, id. §§113, 114. Generally, “no order of adoption shall be made until [the adoptive] child has resided with the adoptive parents for at least three months.” Id. §112(6). New York law authorizes the Commissioner of OCFS to enforce laws and rules pertaining to adoption. See N.Y. Soc. Serv. Law §34(3)(e).7 By law, OCFS is authorized to visit, inspect, and supervise authorized adoption agencies. See id. §371(10). Where OCFS determines that an agency has placed or boarded a child (1) “for purposes of gain,” (2) “without due inquiry as to the character and reputation of the person with whom such child is placed,” (3) “in such manner that such child is subjected to cruel or improper treatment or neglect or immoral surroundings,” or (4) “in such manner that the religious faith of the child is not preserved and protected as provided [by law],” OCFS is specifically authorized, upon notice and an opportunity to be heard, to “issue an order prohibiting such an authorized agency…from thereafter placing out or boarding out any child.” Id. §385(1). 2. 18 NYCRR §421.3(d) We now turn to the regulation at issue in this case, 18 NYCRR §421.3(d), beginning with some background to its pronouncement. As the New York Court of Appeals has observed, the “pattern of amendments” to New York adoption law over the last 75 years “evidences a successive expansion of the categories of persons entitled to adopt.” Matter of Jacob, 86 N.Y.2d at 660-61. Consistent with a general purpose to assure that “as many children as possible are adopted into suitable family situations,” certain of these amendments reflect “fundamental changes that have taken place in the makeup of the family.” Id. at 661 (internal quotation marks omitted). As relevant here, until 2010, New York’s Domestic Relations Law permitted only “[a]n adult unmarried person or an adult husband and his adult wife together” to adopt a child. N.Y. Dom. Rel. Law §110 (2009). This law did not prohibit a homosexual person from adopting as a single “adult unmarried person.” See Matter of Jacob, 86 N.Y.2d at 662 (stating that “New York does not prohibit adoption by homosexuals,” and observing that administrative regulation forbids denial of agency adoption on basis of homosexuality8). But it was understood not to permit an unmarried couple, whatever their sexual orientation, jointly to adopt a child. That conclusion was eroded, however, by court rulings beginning with the 1995 decision in Matter of Jacob, 86 N.Y.2d 651. In that case, the New York Court of Appeals construed §110′s “adult unmarried person” phrase to allow the same-sex partner of a child’s biological mother to adopt the child without the mother surrendering her rights, thereby effectively allowing a same-sex couple to become the child’s parents. See id. at 660-62, 665-68. A decade later, the Fourth Department construed Jacob’s reasoning to compel the conclusion that an unmarried, same-sex couple — neither member of which was the child’s biological parent — could jointly petition for adoption of a child rather than being required to file separately. See In re Adoption of Carolyn B., 6 A.D.3d 67, 68-70, 774 N.Y.S.2d 227 (4th Dep’t 2004). Mindful of these decisions, the New York State legislature, in 2010, amended §110 to state that “[an] adult unmarried person, an adult married couple together, or any two unmarried adult intimate partners together may adopt another person.” N.Y. Dom. Rel. Law §110. In a signing statement accompanying his approval of the bill, then-Governor David Paterson observed that the amendment expanded qualified adoption applicants to include same-sex couples, “mak[ing] absolutely clear a principle that has already been established by the courts, and that ensures fairness and equal treatment to families that are ready, willing and able to provide a child with a loving home…includ[ing] same-sex couples, regardless of whether they are married.” Gov. Mem., New York Bill Jacket, 2010 S.B. 1523, ch. 509 (internal citation omitted). At the same time, however, the Governor stated that “since the statute is permissive, it would allow for such adoptions without compelling any agency to alter its present policies.” Id. In sum, he characterized amended §110 as “a wise, just and compassionate measure that expands the rights of New Yorkers, without in any way treading on the views of any citizen or organization.” Id. The new law went into effect on September 17, 2010, and prompted OCFS to issue two “informational letters” to authorized agencies. The first letter, dated January 11, 2011, and entitled “Adoption by Two Unmarried Adult Intimate Partners,” stated that amended §110 “codifies…court decisions that authorize unmarried persons to adopt a child together,” but “does not change or alter the standards currently in place for the approval of an individual as an adoptive parent.” OCFS Informational Ltr., 11-OCFS-INF-01. A copy of the Governor’s quoted signing statement was attached to this letter. The second letter, dated July 11, 2011, and entitled “Clarification of Adoption Study Criteria Related to Length of Marriage and Sexual Orientation,” addressed the effect of amended §110 on two existing OCFS regulations: 18 NYCRR §421.16(e) (prohibiting rejection of applicants for adoption study on basis of “length of time they have been married, provided that time is at least one year”) and 18 NYCRR §421.16(h)(2) (prohibiting rejection of applicants “solely on the basis of homosexuality”). As to the first regulation, OCFS instructed authorized agencies that the amended statute no longer permitted rejecting an adoption applicant “solely on the basis that the length of marriage is less than one year.” OCFS Informational Ltr., 11-OCFS-INF-05. As to the second regulation, OCFS stated that its purpose “is to prohibit discrimination based on sexual orientation in the adoption study assessment process,” and that “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. Two years later, in November 2013, OCFS replaced both regulations with the provision here at issue: 18 NYCRR §421.3(d). See 35 N.Y. Reg. 3 (Nov. 6, 2013).9 It requires authorized adoption agencies, [to] 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, and[] [to] 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 NYCRR §421.3(d). In promulgating this provision, OCFS stated that the regulation would “promote fairness and equality in the child welfare adoption program by eliminating archaic regulatory language that implies the sexual orientation of gay, lesbian and bisexual prospective adoptive parents — but not of heterosexual prospective adoptive parents — is relevant to evaluating their appropriateness as adoptive parents.” 35 N.Y. Reg. 4 (Aug. 7, 2013) (proposed rulemaking).10 B. New Hope’s Adoption Services New Hope’s Christian ministry was conceived by clergyman Clinton H. Tasker who, in 1958, sensed a “call of God” to care for women facing unplanned pregnancies and for their children.11 Compl. 40. Tasker’s idea was realized in 1965, when Evangelical Family Service, Inc. — New Hope’s predecessor agency — sought and obtained from New York’s Board of Social Welfare a two-year certificate of incorporation authorizing it “to accept legal custody and guardianship of children; to provide protective service for children; to provide foster care service to child[ren] and unwed mother[s]; to place children for adoption; and [to] function in complete cooperation with all existing social welfare agencies.” J. App’x at 66; see N.Y. Soc. Serv. Law §371(10)(a). Two years later, in 1967, New York made the certificate “perpetual.” J. App’x at 73-76.12 Thus, when in a 2008 letter, OCFS — as successor to the Board of Social Welfare — traced New Hope’s authorization history, it confirmed that New Hope’s “authority to place children for adoption and to perform other adoption services, including home studies…in New York is perpetual.” Id. at 79. New Hope maintains that its “Christian faith and religious beliefs motivate and permeate its mission and all of its activities.” Compl. 52. In defending dismissal, OCFS does not contend otherwise, nor does it challenge the sincerity of New Hope’s religious beliefs. Consistent with its religious identity, New Hope requires all board members, staff, and volunteers to “be in agreement with and sign New Hope’s statement of faith,…be in agreement with and supportive of [its] religious mission, and…conduct themselves consistent with Christian faith and belief.” Id. 53. Moreover, “to scrupulously ensure its autonomy to operate in accordance with its religious beliefs, New Hope accepts no government funding.” Id. 51. New Hope asserts that its religious beliefs prompt it to conduct its adoption ministry in such a way as to convey a “system of values about life, marriage, family and sexuality to both birthparents and adoptive parents.” Id. 270. Thus, when prospective parents attend an initial orientation session, “New Hope…open[s] the meeting with prayer,…provid[es] information about the organization’s history and religious mission,” and uses “scripture passages” to explain that “children are to be valued as gifts from God.” Id. 105. New Hope also uses prayer and religious literature in conducting the second, “home study,” step of the adoption process. See id.
