United States Court of Appeals For The Second Circuit

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Case 19-1715, Document 120, 10/21/2019, 2685057, Page1 of 76

19-1715
United States Court of Appeals
for the Second Circuit
NEW HOPE FAMILY SERVICES, INC.

Plaintiff-Appellant,
v.
SHEILA J. POOLE, in her official capacity as Acting Commissioner for the
Office of Children and Family Services for the State of New York,

Defendant-Appellee.

On Appeal from the United States District Court


for the Northern District of New York

BRIEF FOR APPELLEE

LETITIA JAMES
Attorney General
BARBARA D. UNDERWOOD State of New York
Solicitor General Attorney for Appellee
ANDREA OSER The Capitol
Deputy Solicitor General Albany, New York 12224
LAURA ETLINGER (518) 776-2028
Assistant Solicitor General [email protected]
of Counsel
Dated: October 21, 2019
Case 19-1715, Document 120, 10/21/2019, 2685057, Page2 of 76

TABLE OF CONTENTS

TABLE OF AUTHORITIES .....................................................................iii

PRELIMINARY STATEMENT ...............................................................III

QUESTIONS PRESENTED ..................................................................... 2

STATEMENT OF THE CASE .................................................................. 3

A. Statutory and Regulatory Framework ..................................... 3

B. OCFS’s Nondiscrimination Regulation .................................... 6

C. Factual Background and Procedural History .......................... 8

D. The District Court Decision .................................................... 10

E. Subsequent Events ................................................................. 13

SUMMARY OF ARGUMENT ................................................................. 13

ARGUMENT ........................................................................................... 16

POINT I ................................................................................................... 16

NEW HOPE FAILS TO STATE A FREE-EXERCISE CLAIM .......................... 16

A. The Nondiscrimination Regulation on its Face is a Valid


and Neutral Law of General Application. .............................. 16

B. New Hope Is Not Exempted from the Smith Rule for


Neutral and Generally Applicable Laws. ............................... 20

C. New Hope’s Allegations Are Insufficient to Cast Doubt


on the Neutrality and General Applicability of the
Nondiscrimination Rule. ......................................................... 26

i
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1. The Allegations Are Insufficient to Suggest that in


Operation the Nondiscrimination Regulation
Targets Religion. .............................................................. 26

2. The Allegations Are Insufficient to Suggest that


Enactment and Enforcement of the
Nondiscrimination Regulation Was Prompted by
Hostility Toward Religion. .............................................. 33

POINT II .................................................................................................. 46

NEW HOPE FAILS TO STATE A FREE-SPEECH CLAIM ............................. 46

POINT III ................................................................................................ 55

NEW HOPE FAILS TO STATE AN EXPRESSIVE-ASSOCIATION CLAIM ........ 55

A. New Hope’s Right to Expressive Association Is Not


Implicated. .............................................................................. 55

B. Even Assuming New Hope’s Right to Expressive


Association Is Implicated, Any Burden on that Right Is
Too Incidental to State a Claim .............................................. 59

POINT IV................................................................................................. 62

IF THE COURT REINSTATES THE COMPLAINT, IT SHOULD REMAND


TO ALLOW THE DISTRICT TO RULE ON THE PRELIMINARY
INJUNCTION MOTION IN THE FIRST INSTANCE....................................... 62

CONCLUSION ........................................................................................ 65

ii
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TABLE OF AUTHORITIES

CASES PAGE

Agency for Intl. Dev. v. Alliance for Open Soc’y Int’l, Inc.,
570 U.S. 205 (2013) ............................................................................. 53

Bell Atl. Corp. v. Twombly,


550 U.S. 544 (2007) ............................................................................. 11

Central Rabbinical Congress of the United States v. N.Y. City


Dept. of Health & Mental Hygiene,
763 F.3d 183 (2d Cir. 2014) .......................................................... 30, 31

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,


508 U.S. 520 (1993) ..........................................16, 18, 25, 26, 29, 33, 34

Commack Self-Service Kosher Meats, Inc. v. Hooker,


680 F.3d 194 (2d Cir. 2012) ........................................................... 16-17

Consorti v. Armstrong World Indus.,


103 F.3d 2 (2d Cir. 1995) .................................................................... 63

Dallas v. Stanglin,
490 U.S. 19 (1989) ......................................................................... 55, 59

Employment Division v. Smith,


494 U.S. 872 (1990) .............................. 11, 14, 16, 18, 19, 20, 22, 23, 25

Fighting Finest v. Bratton,


95 F.3d 224 (2d Cir. 1996) .................................................................. 59

FOP Newark Lodge No. 12 v. City of Newark,


170 F.3d 359 (3d Cir. 1999) ................................................................ 30

Fratello v. Archdiocese of N.Y.,


863 F.3d 190 (2d Cir. 2017) ............................................................... 21f

iii
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TABLE OF AUTHORITIES (cont’d)

CASES (Cont’d) PAGE

Frontera Resources Azer. Corp. v. State Oil Co. of the Azer.


Republic,
582 F.3d 393 (2d Cir. 2009) .................................................................. 3

Fulton v. City of Phila.,


922 F.3d 140 (3d Cir. 2019),
pet. for cert. filed July 22, 2019 .............................. 8, 29, 40, 41, 45, 52

Hosanna-Tabor Evangelical Lutheran Church & Sch. v.


E.E.O.C.,
565 U.S. 171 (2012) ................................................................. 20, 21, 23

Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,


515 U.S. 557 (1995) ................................................................. 34, 47, 48

Jacob, In re
86 N.Y.2d 651 (1995) .............................................................. 7, 28n, 44

Intercommunity Ctr. for Justice & Peace v. I.N.S.,


910 F.2d 42 (2d Cir. 1990) .................................................................. 17

Jacoby & Meyers, LLP v. Presiding Justices of the First,


Second, Third & Fourth Depts.,
852 F.3d 178 (2d Cir. 2017) ................................................................ 61

Leebaert v. Harrington,
332 F.3d 134 (2d Cir. 2003) ................................................................ 24

Lyng v. Intl. Union,


485 U.S. 360 (1988) ............................................................................. 59

Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rights Comm’n,


138 S. Ct. 1719 (2018) ..............................19, 23, 26, 40, 42, 43, 43n, 45

Matal v. Tam,
137 S. Ct. 1744 (2017) ................................................................... 51, 52

iv
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TABLE OF AUTHORITIES (cont’d)

CASES (Cont’d) PAGE

Meyer v. Nebraska,
262 U.S. 390 (1923) ............................................................................. 24

N.Y. State Club Assn. v City of N.Y.,


487 U.S. 1 (1988) ................................................................................. 47

NAACP v. Button,
371 U.S. 415 (1963) ............................................................................. 60

Natl. Inst. of Family & Life Advocates v Becerra,


138 S. Ct. 2361 (2018) ......................................................................... 50

Nielsen v. Rabin,
746 F.3d 58 (2d Cir. 2014) .................................................................. 32

Pani v. Empire Blue Cross Blue Shield,


152 F.3d 67 (2d Cir. 1998) .................................................................. 38

Papasan v. Allain,
478 U.S. 265 (1986) ....................................................................... 37, 38

Penn v. N.Y. Methodist Hosp.,


884 F.3d 416 (2d Cir. 2018) ................................................................ 21

Pierce v. Society of Sisters,


268 U.S. 510 (1925) ....................................................................... 24, 25

Planned Parenthood v. Casey,


505 U.S. 833 (1992) ............................................................................. 50

Primus, In re
436 U.S. 412 (1978) ............................................................................. 60

Ragbir v. Homan,
923 F.3d 53 (2d Cir. 2019) .................................................................. 62

v
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TABLE OF AUTHORITIES (cont’d)

CASES (Cont’d) PAGE

Rector, Wardens, & Members of Vestry of St. Bartholomew’s


Church v. New York,
914 F.2d 348 (2d Cir 1990), cert. denied sub nom., Comm.
to Oppose Sale v. Rector, 499 U.S. 905 (1991) ........................ 17, 39, 41

Rumsfeld v. Forum for Academic& Institutional Rights, Inc.


(FAIR),
547 U.S. 47 (2006) ............................................................. 46, 47, 49, 58

Rust v. Sullivan,
500 U.S. 173 (1991) ............................................................................. 53

State Employees Bargaining Agent Coalition v. Rowland,


494 F.3d 71 (2d Cir. 2007) .................................................................. 38

Stormans, Inc. v. Wiesman,


794 F.3d 1064 (9th Cir. 2015) ............................................................. 39

Tabbaa v. Chertoff,
509 F.3d 89 (2d Cir. 2007) .................................................................. 59

Texas v. Johnson,
491 U.S. 397 (1989) ............................................................................. 56

United States v. Amer,


110 F.3d 873 (2d Cir. 1997) ................................................................ 17

United States v. Lee,


455 U.S. 252 (1982) ............................................................................. 17

United States v. Thompson,


896 F.3d 155 (2d Cir. 2018) ................................................................ 55

Universal Church v. Geltzer,


463 F.3d 218 (2d Cir. 2006) ................................................................ 17
vi
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TABLE OF AUTHORITIES (cont’d)

CASES (Cont’d) PAGE

Vlad-Berindan v NY City Metro. Transp. Auth.,


No. 17-3397, 2019 U.S. App. LEXIS 20248 (2d Cir. July 9,
2019) .................................................................................................. 10n

Ward v. Polite,
667 F.3d 727 (6th Cir. 2012) .......................................................... 30-31

Wooley v. Maynard,
430 U.S. 705 (1977) ........................................................................ 48-49

UNITED STATES CONSTITUTION

First Amendment ............................................................................ passim

FEDERAL STATUTES

25 U.S.C.
§ 1902 .................................................................................................. 28
§ 1915(a) .............................................................................................. 28

42 U.S.C.
§ 1983 .................................................................................................... 1

NEW YORK STATE STATUTES

Domestic Relations Law

§ 109(4) .................................................................................................. 5
§ 110 .......................................................... 7, 28n, 34, 35, 38, 42, 44, 45
§ 113(1) .................................................................................................. 5
§ 114(1) .................................................................................................. 3

Executive Law
§ 296 ...................................................................................................... 7

vii
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TABLE OF AUTHORITIES (cont’d)

PAGE
New York State Statutes (Cont’d)

New York Civil Rights Law


§ 40-c ..................................................................................................... 7

Social Services Law


§ 371(10) ................................................................................................ 4
§ 371(10)(a)............................................................................................ 5
§ 372-e(4) ............................................................................................... 5
§ 373(2) and (7) ............................................................................. 24, 28
§ 374(2) .................................................................................................. 3
§ 383(2) .................................................................................................. 5
§ 384 ...................................................................................................... 4
§ 460-a(1) ............................................................................................... 5

N.Y. Laws 2010, c. 509 ........................................................................ 7, 35

STATE RULES AND REGULATIONS

18 N.Y.C.R.R.
§ 421.2(a) ............................................................................................... 3
§ 421.3(d) ............................................................................. 6. 6n, 12, 18
§ 421.6 ................................................................................................... 4
§ 421.10 ............................................................................................... 27
§ 421.13 ........................................................................................... 4, 27
§ 421.15 ................................................................................................. 4
§ 421.15(g) ............................................................................................. 4
§ 421.16 ................................................................................................. 4
§ 421.16(e) ..................................................................................... 7n, 35
§ 421.16(h)(2) ...................................................................................... 36
§ 421.18(c) ........................................................................................... 28
§ 421.18(d) ....................................................................................... 4, 29
§ 441.24 ............................................................................................... 7n

viii
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TABLE OF AUTHORITIES (cont’d)

PAGE
MISCELLANEOUS AUTHORITIES

Human Rights Campaign, Religion and Faith: Faith


Positions, available at
https://www.hrc.org/resources/faith-positions.................................... 39

Movement Advancement Project, Equality Maps: Foster and


Adoption Laws,
https://www.lgbtmap.org/equality-
maps/foster_and_adoption_laws (last accessed October 16,
2019) ...................................................................................................... 8

N.Y. State Register (Aug. 7, 2013)


https://docs.dos.ny.gov/info/register/2013/aug7/pdf/rulemakin
g.pdf ............................................................................................... 6n, 34

N.Y. State Register (Nov. 6, 2013)


https://docs.dos.ny.gov/info/register/2013/nov6/pdf
rulemaking.pdf...................................................................................... 6

OCFS Informational Letter 11-OCFS-INF-01


https://ocfs.ny.gov/main/policies/external/OCFS_2011/INFs/11-
OCFS-INF-
01%20Adoption%20by%20Two%20Unmarried%20Adult%20........... 35

OCFS Informational Letter 11-OCFS-INF-05


https://ocfs.ny.gov/main/policies/external/OCFS_2011/INF
s/11-OCFS-INF-
05%20Clarification%20of%20Adoption%20Study%20Crite
ria%20Related%20to%20Length%20of%20Marriage%20a
nd%20Sexual%20Orientation%20.pdf ............................................... 36

ix
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PRELIMINARY STATEMENT

A New York State regulation prohibits public and private agencies

that provide adoption services from discriminating against unmarried

cohabitating couples or same-sex couples in the provision of those

services. Plaintiff-appellant New Hope Family Services (“New Hope”) is

a faith-based private agency that provides adoption services, but refuses

to place children for adoption with unmarried cohabitating couples or

same-sex couples. In this action under 42 U.S.C. § 1983, New Hope

claims that its First Amendment rights to free exercise, free speech and

expressive association allow it to discriminate in this manner and, thus,

prevent the State from enforcing its nondiscrimination regulation

against it. The United States District Court for the Northern District of

New York (D’Agostino, J.) disagreed, dismissed the complaint for failure

to state a claim, and denied injunctive relief. For the reasons set forth

below, this Court should affirm.


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QUESTIONS PRESENTED

1. Whether the complaint fails to state a free-exercise claim on

the ground that, on its face and in operation, the challenged

nondiscrimination regulation is a valid and neutral law of general

application.

2. Whether the complaint fails to state a free-speech claim on

the grounds that the challenged nondiscrimination regulation regulates

conduct, not speech, and any effect on New Hope’s speech is in any event

incidental to its prohibition of discriminatory conduct and occurs only

within the contours of the provision of regulated public services.

3. Whether the complaint fails to state an expressive-association

claim on the grounds that New Hope’s provision of adoption services does

not implicate an expressive-association right and any incidental burden

on such a right would in any event be constitutional in light of the State’s

compelling interest in prohibiting nondiscrimination.

4. Whether, in the event the Court nonetheless reinstates any of

these claims, it should remand to the district court for a ruling on the

motion for a preliminary injunction in the first instance.

2
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STATEMENT OF THE CASE

A. Statutory and Regulatory Framework

The State has a vital interest in ensuring that prospective adoptive

parents provide safe and appropriate homes for adopted children, and

that adoptive placements serve each child’s best interests. N.Y. Domestic

Relations Law (“DRL”) § 114(1); see also N.Y. Comp. Codes R. & Regs.

tit. 18 (“18 N.Y.C.R.R.”) § 421.2(a) (explaining need to place children

where they will have the opportunity for growth, development, and

parental guidance). In furtherance of these interests, the State

stringently regulates those who provide authorized adoption services

according to established standards and criteria. Although it may well be

that historically adoptions were arranged by private parties with little

government oversight, that system was long ago replaced with a highly

regulated regime in which the State partners with both public and

private entities.

Only a public or private “authorized agency” may provide adoption

services in New York. 1 N.Y. Social Services Law (“SSL”) § 374(2). An

1 Private placement adoptions are allowed in New York and are


separately regulated. Those situations do not involve adoptive services.
(continued on the next page)

3
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“authorized agency” is an agency organized under New York law with

corporate authority to care for children, place out children for adoption

or care, or board out children for foster care. SSL § 371(10).

The statutory scheme bestows significant authority on authorized

agencies. Authorized agencies accept applications from prospective

adoptive parents, conduct adoption studies regarding applicants’

suitability to serve as adoptive parents based on specified factors, see 18

N.Y.C.R.R. §§ 421.13, 421.15, 421.16, and approve or disapprove

applicants for adoption based on applicable regulatory standards, id.

§ 421.15(g). State law also vests authorized agencies with authority to

accept surrender of a child from its parents, which transfers legal custody

and guardianship of the child to the authorized agency. SSL § 384; 18

N.Y.C.R.R. § 421.6. And authorized agencies choose prospective adoptive

homes for children accepted for placement, making decisions on the basis

of the “best interests” of the respective children, taking into consideration

the factors specified in 18 N.Y.C.R.R. § 421.18(d). Guardianship and legal

custody of a child accepted for adoption remain with the authorized

Instead, private parties seek judicial approval to transfer custody of the


child from birth parents directly to the chosen adoptive placement.
4
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agency during any period of supervised pre-adoptive placement. DRL

§ 113(1); SSL § 383(2). And the adoption agency’s consent is required to

complete an adoption for a child the agency has placed. DRL § 113(1).

Moreover, public and private authorized agencies alike are subject

to state oversight. The decisions of authorized agencies disapproving

applicants are subject to fair-hearing review before the State’s Office of

Children and Family Services (“OCFS”). See SSL § 372-e(4). And all of a

private adoption agency’s adoption activities are subject to approval,

visitation, inspection and supervision by OCFS. SSL § 371(10)(a); see

DRL 109(4). Indeed, the only way in which public and private authorized

agencies differ is that a private adoption agency’s certificate of

incorporation is subject to OCFS approval. SSL § 460-a(1). The district

court thus rightly characterized New Hope’s adoption activities as

involving the “administ[ration of] public services.” (JA282. 2)

An authorized agency’s adoption activities are subject to

government oversight in several respects.

2 Citations to “JA__” refer to documents in the joint appendix.


Citations to documents filed with this Court that are not included in the
joint appendix are denoted as “Second Cir. Dkt. No. 19-1715, ECF ___.”
5
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B. OCFS’s Nondiscrimination Regulation

In 2013, OCFS promulgated a series of regulatory amendments

designed to eliminate discrimination on the basis of sexual orientation

and gender identity in the provision of “essential social services” for

children, including adoption services. N.Y. State Register (Nov. 6, 2013),

at 3. 3 One of these amendments added the regulatory provision at issue

here prohibiting authorized adoption agencies from “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.” 4 18 N.Y.C.R.R.

§ 421.3(d). 5 This nondiscrimination regulation is consistent with, and

3Available at https://docs.dos.ny.gov/info/register/2013/nov6/pdf/
rulemaking.pdf (last accessed Oct. 16, 2019).
4 The regulation also requires authorized agencies providing
adoption services 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 N.Y.C.R.R. § 421.3(d).
5 As part of the same regulatory package, OCFS prohibited
discrimination on all of these bases in the provision of foster-care services
and eliminated existing regulatory language that indicated that adoption
applicants could be rejected on the basis of marital status or
homosexuality. See N.Y. State Register (August 7, 2013), at 4, available
(continued on the next page)

6
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implements, state laws prohibiting discrimination. New York Civil

Rights Law § 40-c prohibits such discrimination against any person in

the exercise of civil rights and New York Executive § 296 prohibits such

discrimination in the provision of public accommodations. Moreover, the

New York Court of Appeals has long recognized that neither marital

status, nor sex, nor sexual orientation “may alone be determinative in an

adoption proceeding.” In re Jacob, 86 N.Y.2d 651, 663, 667 (1995). And

the New York Legislature has expressly amended the law to confirm the

right of unmarried and same sex-couples to adopt on equal terms as

married, heterosexual couples. See N.Y. Laws 2010, ch. 509 (codified at

DRL § 110); see also Memorandum of Senate Sponsor, Bill Jacket for

same, at 6-7 (describing legislation as codifying In re Jacob and ensuring

that same-sex couples have “equal rights to adopt a child together”).

New York is not alone in prohibiting discrimination on the basis of

sexual orientation or gender identity by adoption agencies. Seven other

states (California, Massachusetts, Maryland, Michigan, Nevada, New

at https://docs.dos.ny.gov/info/register/2013/aug7/pdf/rulemaking.pdf
(adding 18 N.Y.C.R.R. § 441.24 and amending 18 N.Y.C.R.R. § 421.16(e)
and (h)(2)) (last accessed Oct. 16, 2019).
7
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Jersey, and Rhode Island), the District of Columbia, and two United

States territories (Puerto Rico and Guam) prohibit discrimination on one

or both bases. See Movement Advancement Project, Equality Maps:

Foster and Adoption Laws.6 Relatedly, New York and eight states, the

District of Columbia and one territory also prohibit discrimination on one

or both bases in the provision of foster-care services. Id Some localities

also prohibit discrimination against same-sex couples in the provision of

child-welfare services, by interpreting more general nondiscrimination

provisions to have that effect. See Fulton v. City of Phila., 922 F.3d 140,

158 (3d Cir. 2019) (applying Philadelphia’s nondiscrimination laws to

foster-care services), pet. for cert. filed July 22, 2019.

C. Factual Background and Procedural History

New Hope, operating under a prior name, was incorporated in 1965

with the corporate purpose of operating, among other child welfare

programs, an authorized adoption program in New York. (JA66.) New

Hope currently operates an authorized adoption program that places

6 Available at https://www.lgbtmap.org/equality-
maps/foster_and_adoption_laws (last accessed October 16, 2019).
(continued on the next page)

8
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newborns, infants and toddlers up to age two. (JA21.) It also operates a

pregnancy resource center that encourages pregnant women to choose

parenting or adoption over abortion.7 (JA18-19). Some of the birth

mothers whose infants New Hope places for adoption come to New Hope

through its pregnancy resource center. (JA20.)

In September 2018, OCFS learned that New Hope refuses to

provide adoption services to unmarried or same-sex couples.8 OCFS

promptly notified New Hope in writing that it was operating in violation

of OCFS’s regulation prohibiting such discrimination and directed it to

file a formal written response identifying whether it intended to come

7While New Hope claims that it also operates a foster-care program


(JA31), in fact, it does not operate a traditional publicly-funded foster
boarding program, which serves children placed in the care of the local
commissioner of social services. Rather, New Hope makes short-term
placements while birth parents remain undecided about adoption
placements. (JA31).
8 New Hope’s written policy provides that inquiries from
prospective applicants who are single or in a marriage with a spouse of
the same sex are referred to the agency’s executive director because “New
Hope will place children with those who are truly single, but . . . will not
place children with those living together without the benefit of marriage”
or “with same sex couples.” (JA88.)
(continued on the next page)

9
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into compliance or to submit a close-out plan for its adoption program.

(JA11, 87.)

Instead of responding, New Hope commenced this litigation,

arguing, among other things, that the regulation as applied violated its

First Amendment rights. 9 (JA48-56.) New Hope also promptly moved for

preliminary injunctive relief. (JA89-92.) OCFS thereupon moved to

dismiss the complaint for failure to state a claim and opposed the request

for injunctive relief. (JA166-170, 171-193.)

D. The District Court Decision

On May 16, 2019, the U.S. District Court for the Northern District

of New York (D’Agostino, J.), rejected New Hope’s constitutional claims,

granted OCFS’s motion to dismiss the complaint, and dismissed as moot

New Hope’s motion for a preliminary injunction. (JA282.)

9 New Hope also asserted equal-protection and unconstitutional-


conditions claims. (JA54-56.) In its brief to this Court (Br. at 12 n.1), New
Hope expressly declines to challenge the district court’s dismissal of these
claims. We therefore do not address them further. See Vlad-Berindan v
NY City Metro. Transp. Auth., No. 17-3397, 2019 U.S. App. LEXIS 20248,
at *2, n 1 (2d Cir. July 9, 2019) (declining to address claim that appellant
expressly abandoned).
10
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Applying the proper standard for a motion to dismiss for failure to

state a claim, i.e., whether the allegations of the complaint, “‘however

true, . . . raise a claim of entitlement to relief’” (JA252 (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 558, 570 (2007))), the district court

concluded that the complaint failed to state any constitutional claim.

The district court rejected New Hope’s free-exercise claim under the

rule of Employment Division v. Smith, 494 U.S. 872 (1990), which holds

that the Free Exercise Clause does not relieve a party from the obligation

to comply with a valid and neutral law of general application. The court

found that the regulation was valid and neutral because its plain

language, its stated purpose, and the context of its promulgation all

showed it was intended for the valid and neutral purpose of eliminating

discrimination and not intended to interfere with an authorized agency’s

exercise of religion. (JA262-263.) And the court found that the regulation

was one of general application because it applied equally to all authorized

agencies. (JA262.) The court reasoned that none of New Hope’s contrary

allegations were sufficient to suggest otherwise. (JA264-266.)

The district court rejected New Hope’s free-speech claim on the

ground that the provision of nondiscriminatory adoption services would

11
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not require New Hope to convey a message with which it disagreed (the

message that it approved of unmarried or same-sex families); at most a

placement would convey the message that a given placement was in the

child’s best interest according to the criteria that state law required it to

apply. (JA268-269.) The court reasoned further that the regulation

merely forbids the act of discrimination against prospective adoptive

parents and does not appear to prevent New Hope from continuing to

share its religious beliefs throughout the adoption process. (JA269-270.)

Alternatively, the court found that because New Hope’s provision of

adoption services was governmental in nature, to the extent the

nondiscrimination regulation restricted any speech in the provision of

adoption services, it could be viewed as merely promoting the

government’s message that “adoption and foster care services are

provided to all New Yorkers consistent with [the] anti-discrimination

policy set forth in 18 N.Y.C.R.R. § 421.3(d).” (JA267-268.)

The district court rejected New Hope’s expressive-association claim

without deciding whether New Hope’s expressive-association right was

implicated. Instead, the district court assumed that the right was

implicated and found that any impairment of that right was too

12
Case 19-1715, Document 120, 10/21/2019, 2685057, Page23 of 76

incidental to exempt New Hope from application of the nondiscrimination

rule. (JA272.) Alternatively, the court held that even if the regulation

impaired New Hope’s expressive-associational rights, the State’s

compelling interest in prohibiting discrimination outweighed any such

harm. (JA272-273.)

E. Subsequent Events

After New Hope filed its notice of appeal, it moved in this Court for

a preliminary injunction that would allow it, among other things, to

continue to evaluate a specified group of adoption applicants and accept

surrenders of children and place out such children during the pendency

of the appeal. Second Cir. Dkt. No. 19-1715, ECF 56-1. While the motion

for a preliminary injunction was under review, OCFS agreed not to act

on its latest letter seeking compliance with its policy or submission of a

close-out plan. As of this writing, New Hope’s motion for a preliminary

injunction remains pending.

SUMMARY OF ARGUMENT

The district court properly rejected New Hope’s claims that the

First Amendment protects its right to discriminate against unmarried

13
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and same-sex couples in its provision of adoption services, in violation of

OCFS’s nondiscrimination regulation. The district court therefore

properly dismissed New Hope’s complaint for failure to state a claim and

denied as moot its motion for a preliminary injunction. This Court should

affirm.

The nondiscrimination regulation does not violate New Hope’s free-

exercise right. It is well settled that a party is not excused from complying

with a valid and neutral law of general application, even if the law

prescribes conduct that the party’s religion proscribes. See Employment

Division v. Smith, 494 U.S. 872, 879 (1990). And the nondiscrimination

regulation is precisely such a law. While New Hope and proposed amicus

Jewish Coalition for Religious Liberty claim that Smith is inapplicable

here, their arguments rely on inapposite cases and present no good

reason to exempt New Hope from the settled rule of Smith. And New

Hope’s allegations fail to suggest that the nondiscrimination regulation

in operation is not in fact neutral or of general application.

The nondiscrimination regulation does not violate New Hope’s free-

speech right. The Supreme Court has long held that nondiscrimination

rules like the regulation at issue here regulate conduct, not speech. To

14
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the extent New Hope claims that compliance with the regulation will

dilute its message, it fails to state a claim because any such effect on New

Hope’s speech is incidental to the regulation of New Hope’s conduct.

The nondiscrimination claim also does not violate New Hope’s right

to expressive association, for either of two reasons. First, New Hope’s

expressive-association right is not implicated. New Hope was formed to

provide adoption services and place children in homes with prospective

adoptive parents; it was not formed to engage in expressive activity such

as lobbying, civil rights litigation, or instilling values in young people—

the types of protected expressive association recognized by the Supreme

Court. Second, even if New Hope’s expressive-association right is

implicated, any burden on that right is merely incidental and thus

insufficient to state a claim.

If the Court disagrees and reinstates any of these claims, however,

it should remand to allow the district court to rule on the merits of New

Hope’s preliminary injunction motion in the first instance. Because the

district court denied New Hope’s motion for a preliminary injunction as

moot upon dismissing the complaint for failure to state a claim, there is

no exercise of district court discretion for this Court to review.

15
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ARGUMENT

POINT I

NEW HOPE FAILS TO STATE A FREE-EXERCISE CLAIM

The district court correctly found that New Hope’s complaint fails

to state a claim for relief under the Free Exercise Clause because the

nondiscrimination regulation is a valid and neutral rule of general

application.

A. The Nondiscrimination Regulation on its Face is a


Valid and Neutral Law of General Application.

It is well settled that New Hope’s religious purpose do not excuse it

from complying with a valid and neutral regulation of general

applicability, even if the regulation prescribes conduct that its religion

proscribes. See Smith, 494 U.S. at 879. A law that is “neutral and of

general application need not be justified by a compelling governmental

interest even if the law has the incidental effect of burdening a particular

religious practice.” Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 531 (1993). Applying this rule, this Court has

repeatedly upheld application of rationally based, neutral, and generally

applicable laws and government policies, though they may incidentally

burden religious beliefs or practices. See, e.g., Commack Self-Service


16
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Kosher Meats, Inc. v. Hooker, 680 F.3d 194, 210-12 (2d Cir. 2012) (law

preventing fraud in the kosher food market); Universal Church v. Geltzer,

463 F.3d 218, 227-28 (2d Cir. 2006) (fraudulent conveyance provisions of

Bankruptcy Code); United States v. Amer., 110 F.3d 873, 879 (2d Cir.

1997) (application of International Parental Kidnapping Crime Act);

Rector, Wardens, & Members of Vestry of St. Bartholomew's Church v.

New York, 914 F.2d 348, 354 (2d Cir 1990) (landmarks preservation law),

cert. denied sub nom., Comm. to Oppose Sale v. Rector, 499 U.S. 905

(1991); Intercommunity Ctr. for Justice & Peace v. I.N.S., 910 F.2d 42, 44-

45 (2d Cir. 1990) (federal immigration employer verification and

sanctions requirements).

As the Supreme Court has explained, “[w]hen followers of a

particular sect enter into commercial activity as a matter of choice, the

limits they accept on their own conduct as a matter of conscience and

faith are not to be superimposed on the statutory schemes which are

binding on others in that activity.” United States v. Lee, 455 U.S. 252, 261

(1982). By choosing to perform adoption services, which are now highly

regulated services provided in partnership with the State, New Hope

17
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subjects itself to the neutral and generally applicable rules that govern

all such providers.

On its face, the nondiscrimination rule is neutral toward religion

and generally applicable. By its terms, all private and public adoption

agencies must “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(d). Thus, on its face,

the regulation is neutral toward religion because it simply requires

authorized agencies to serve adoption applicants in a nondiscriminatory

manner. The regulation thus does not have as its object to regulate,

target, or punish religious beliefs. See Church of the Lukumi Babalu Aye,

508 U.S. at 533; Smith, 494 U.S. at 877. The regulation is also generally

applicable because all authorized agencies must comply with its

nondiscrimination mandate.

And there can be no doubt that the nondiscrimination regulation is

rationally related to valid state interests. As the district court properly

found, the nondiscrimination regulation is rationally related to at least

two legitimate state interests—prohibiting discrimination in the

18
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provision of adoption services and expanding the pool of prospective

adoptive parents available to accept specific placements. (See JA266.) As

discussed, infra at 34-37, the regulatory history confirms that the

regulation was adopted to specifically serve those two interests. As the

Supreme Court has recently reaffirmed, if a nondiscrimination

requirement is neutral and generally applicable, religious objections “do

not allow business owners and other actors in the economy and in society

to deny protected persons equal access to goods and services.”

Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rights Comm’n, 138 S. Ct.

1727 (2018).

New Hope nonetheless argues that the nondiscrimination rule

violates its free-exercise rights for two reasons: (1) that the Smith rule,

requiring compliance with neutral and generally applicable laws, does

not apply to the facts of this case, and even if it does, (2) the

nondiscrimination rule is not in operation generally applicable or

neutral. As explained below, neither argument has merit.

19
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B. New Hope Is Not Exempted from the Smith Rule for


Neutral and Generally Applicable Laws.

New Hope argues that the Smith rule permitting, over free exercise

challenges, valid and neutral laws of general application, see Smith, 494

U.S. 872, does not govern this case because the nondiscrimination

regulation intrudes on its “operations in a manner ‘affect[ing] the faith

and mission of the church itself.’” (Br. at 17 (quoting Hosanna-Tabor

Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 190

(2012)).) New Hope is mistaken about the effect of the nondiscrimination

rule. Indeed, the case on which New Hope relies, Hosanna-Tabor

Evangelical Lutheran Church, demonstrates why that is so.

In Hosanna-Tabor, 565 U.S. 171, the Supreme Court held that a

church could assert the Free Exercise Clause as a defense to a claim for

reinstatement and damages under the Americans with Disabilities Act

by a religiously called (i.e., not lay) teacher. The teacher both held the

title of minister and had engaged in required Lutheran education to

qualify to be “called” by God through the congregation to educate its

youth. Id. at 177-78. Noting that the lower courts had been applying a

“ministerial exception” to nondiscrimination laws for forty years, the

20
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Court adopted the exception and applied it to the facts before it. Id. at

190-92.

In so doing, the Court distinguished Smith on the ground that

Smith involved the regulation of “outward physical acts,” while the case

before it involved an application of the Americans with Disabilities Act

that caused “government interference with an internal church decision

that affects the faith and mission of the church itself.” Hosanna-Tabor,

565 U.S. at 190. But in rejecting the “parade of horribles” that the

E.E.O.C. argued would flow from such a decision, the Court carefully

explained that it was deciding only the narrow legal issue before it, which

rested on the “interest of religious groups in choosing who will preach

their beliefs, teach their faith, and carry out their mission.” Id. at 196.

This Court has continued to recognize a “ministerial exception” to

nondiscrimination laws in equally narrow circumstances, i.e., claims of

employment discrimination by religious ministers. See Penn v. N.Y.

Methodist Hosp., 884 F.3d 416 (2d Cir. 2018); Fratello v. Archdiocese of

N.Y., 863 F.3d 190, 192 (2d Cir. 2017). But New Hope cites, and we could

find, no case in which courts have applied the “ministerial exception” to

other contexts.

21
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Nor would it make sense to apply the ministerial exception here. As

the Supreme Court explained in Hosanna-Tabor, the ministerial

exception is intended to protect a religious organization from interference

with an “‘internal church decision that affects the faith and mission of

the church itself.” 565 U.S. at 190. This is because a religious

organization’s choice of “who will preach their beliefs, teach their faith,

and carry out their mission” affects the very core of a religious

organization’s purpose and identity. Id. at 196. That principle has no

application here. Like the neutral, generally applicable law at issue in

Smith (a prohibition on the use of peyote), the nondiscrimination

regulation, by prohibiting discrimination against adoption applicants in

the provision of adoption services, regulates New Hope’s “outward

physical conduct,” not its “internal church decision.” Id. at 190

(distinguishing Smith on this basis).

Further, New Hope does not claim that it is a church or that it was

incorporated for the purpose of inculcating a religious belief. Rather, it

was incorporated to serve the religious purpose of finding homes for

orphan children. And it serves that purpose by providing adoption

services, which are now highly regulated services provided in partnership

22
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with the State under state-established criteria. Thus, New Hope’s

provision of adoption services is “outward physical conduct” that remains

subject to a valid and neutral law of general application.

For all these reasons, Hosanna-Tabor does not support New Hope’s

free-exercise claim.

For like reason, the dictum in Masterpiece Cakeshop, 138 S. Ct.

1719, cited by New Hope (Br. at 18), does not support New Hope’s free

exercise claim. In Masterpiece Cakeshop, the Court assumed that a

member of the clergy who opposed same-sex marriage on religious

grounds could not be required by the government to officiate a same-sex

marriage. Id. at 1727. But a requirement that a member of the clergy

officiate a religious ceremony contrary to the religious teachings of that

member’s faith intrudes directly on a religious organization’s core

internal operations and the clergy member’s religious practices in a way

that is entirely distinct from the rule at issue here, which requires a

state-regulated authorized agency to apply state standards in offering

regulated adoption services. New Hope has thus failed to show that the

rule outlined in Smith does not apply.

23
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Nor does New Hope’s free-exercise claim finds support in older

precedent recognizing parental interests in the upbringing and education

of children, as suggested by proposed amicus Jewish Coalition for

Religious Liberty (“Jewish Coalition”) (Br. at 4, 9-10, 12). First, Meyer v.

Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S.

510 (1925), on which proposed amicus relies, are simply inapposite

because the right recognized in those cases was the parents’ liberty

interest in being able to send their children to private school. See Leebaert

v. Harrington, 332 F.3d 134, 140 (2d Cir. 2003) (describing scope of such

liberty interest). No comparable parental right is at issue here. Second,

even if these decisions stand more broadly, as proposed amicus suggests,

for the proposition that parents have a liberty interest in deciding the

scope and nature of their children’s religious education, any such interest

is furthered, not hampered, by New York’s laws and regulations. New

York favors placing a child with adoptive parents of the same faith “when

practicable” and honoring a religious preference of the birth parents

“when practicable” and in the child’s best interest. SSL § 373(2) and (7).

Thus, New York law already addresses the concern of proposed amicus

Jewish Coalition (Br. at 14-15, 22, 23) that an authorized agency should

24
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be able to place a child with a prospective adoptive family of the same

faith as the child.

And while the Jewish Coalition relies (Br. at 9-12) on a reference in

Pierce to the liberty interest of “guardians” in the education of their

wards, the Court there was merely acknowledging that the challenged

compulsory public-school law required “every parent, guardian or other

person having control or charge or custody of a child” to send the child to

public school. Pierce, 268 US at 530. Pierce did not recognize an

independent constitutional right of authorized adoption agencies, that

have temporary guardianship and custody of a child for placement with

a prospective adoptive family, to make placement decisions based on the

agency’s religious beliefs. Nor did any of these cases recognize a right of

a child’s religious community to direct an adoption placement decision,

as proposed amicus Jewish Coalition appears also to argue (Br. at 7-8.).

Thus, neither New Hope nor proposed amicus argue persuasively that

the underlying free-exercise challenge should not be evaluated under

Smith.

25
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C. New Hope’s Allegations Are Insufficient to Cast Doubt


on the Neutrality and General Applicability of the
Nondiscrimination Rule.

New Hope correctly notes that facially neutral and generally

applicable laws are subject to heightened scrutiny if they operate or are

enforced in a manner that targets religion for disfavored treatment. See

Church of the Lukumi Babalu Aye, 508 U.S. at 531-32. And New Hope

argues that its allegations are sufficient to overcome that facial

neutrality and general applicability here. The district court correctly

rejected that argument. As explained below, New Hope’s allegations here

neither suggest any “religious gerrymander,” as found in Church of the

Lukumi Babalu Aye, 508 U.S. at 535, nor evidence any religious

animosity, as found in Masterpiece Cakeshop, 138 S. Ct. at 1731-32.

1. The Allegations Are Insufficient to Suggest that in


Operation the Nondiscrimination Regulation
Targets Religion.

Contrary to New Hope’s argument (Br. at 19-28), the statutory and

regulatory scheme governing adoption services does not contain

exceptions to the nondiscrimination regulation that allow discrimination

on the basis of other factors, while singling out the form of discrimination

in which New Hope engages.

26
Case 19-1715, Document 120, 10/21/2019, 2685057, Page37 of 76

The statutory and regulatory provisions on which New Hope relies

do not single out any specific religious practices or views. They do not, as

New Hope argues (Br. at 20), in effect provide “secular exceptions” to the

nondiscrimination regulation. The subject provisions merely allow an

authorized agency to focus recruitment efforts and prioritize parents for

home studies based on the needs of children and, in making a placement

determination, to consider various factors (including religion) to further

the interest in obtaining for each child the most appropriate placement

from the pool of approved applicants.

For example, 18 N.Y.C.R.R. §§ 421.10 and 421.13 direct authorized

agencies to focus recruitment efforts on, and give first priority in home

studies to, parents seeking a child with the age, race, disability and other

significant characteristics of the largest proportion of waiting children.

These regulations recognize that where an agency has limited resources

to serve adoption applicants, priority should be given to those applicants

who will meet the needs of the majority of waiting children. And

consistent with federal law, 18 N.Y.C.R.R. § 421.13 additionally requires

agencies to give first priority in home studies to Indian prospective

adoption applicants seeking to adopt Indian children. This provision

27
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implements the federal Indian Child Welfare Act, which establishes

minimum federal standards for the placement of Indian children in foster

care and adoptive homes in order to “promote the stability and security

of Indian tribes and families.” 25 U.S.C. § 1902; see 25 U.S.C. § 1915(a)

(establishing preference for adoption placement with Indian families).

Both of these regulations thus serve the best interests of waiting

children, but do not exclude applicants from services on the basis of any

protected characteristics.

New Hope also relies (Br. at 21-22) on two other aspects of state

statutory and regulatory law. 10 SSL § 373(2) and (7) favor placing a child

with adoptive parents of the same faith “when practicable,” and honoring

a religious preference of the birth parents “when practicable” and in the

child’s best interest. See also 18 N.Y.C.R.R. § 421.18(c) (implementing

10 New Hope’s additional reliance on DRL § 110 is based on a


mischaracterization of that statute. DRL § 110 allows married
individuals to adopt individually only if they have been legally separated
for at least one year. This provision does not discriminate on the basis of
marital status, as New Hope contends. Rather, it was enacted to allow
adults legally separated, but not yet divorced, to adopt individually so
that marital status would not preclude an otherwise eligible prospective
adoptive parent from adopting. In re Jacob, 86 N.Y.2d at 660 (citing
legislative history).

28
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same). 18 N.Y.C.R.R. § 421.18(d) allows consideration of “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” as part of

an agency’s best-interest placement decision.

These provisions do not, however, create exceptions to the

nondiscrimination regulation, which prohibits discrimination against

adoption applicants on the basis of a variety of characteristics, including

race and religion. Rather, they require the consideration of the child’s

characteristics in furthering the State’s interest in approving adoption

placements that serve a child’s best interests.

The provisions on which New Hope relies thus do not address which

applicants or prospective adoptive parents will be served or allow an

authorized agency to turn away a prospective adoption applicant on the

basis of any of the pertinent characteristics. They simply allow

authorized agencies to consider specified protected characteristics in

focusing their recruitment and home-study efforts and in making

placement decisions in order “to find the best fit for each child, taking the

whole of that child's life and circumstances into account.” Fulton v.

29
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Philadelphia, 922 F.3d at 158 (rejecting similar argument to application

of nondiscrimination rule to exclusionary policy of a foster care agency).

And because the statutory and regulatory adoption scheme does not

in fact allow discrimination in the provision of adoption services on other

bases, the statutory scheme at issue here is unlike the laws and policies

at issue in the cases on which New Hope relies.

For example, in Church of the Lukumi Babalu Aye, 508 U.S at 535-

36, the Supreme Court found local ordinances, which were adopted in

response to concerns about animal sacrifice practiced by adherents of the

Santeria religion, were not generally applicable in operation and

effectively targeted the Santeria practice because numerous other types

of animal killings, both secular and religious, were exempted from the

prohibition. And in Central Rabbinical Congress of the United States v.

N.Y. City Dept. of Health & Mental Hygiene, 763 F.3d 183, 196-97 (2d Cir.

2014), this Court found a law that regulated conduct practiced by some

orthodox Jews—a practice in which oral suction is used to draw blood

from the area of the wound during traditional Jewish circumcision—also

appeared to target the practice for unfavorable treatment because the

regulation was severely under-inclusive to serve the government purpose

30
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for which it was purportedly enacted (to reduce the transmission of a

specific infection to infants). Id. at 197. Likewise, in Ward v. Polite, 667

F.3d 727, 740 (6th Cir. 2012), the university’s referral policy applicable

to student counselors was found to target religion in practice because it

allowed student counselors to refer clients to other students for numerous

secular reasons, but not religious ones. Id. at 739; see also FOP Newark

Lodge No. 12 v. City of Newark, 170 F.3d 359, 366 (3d Cir. 1999) (applying

heightened scrutiny to application of police department’s “no beard” rule

to religious observants because department allowed medical exemptions,

which undermined its stated interest in uniformity of appearance).

The New York adoption scheme is entirely different from the

provisions at issue in these cases because, contrary to New Hope’s claim,

it does not permit secular conduct that undermines the “legitimate

government interests purportedly justifying’” the nondiscrimination

regulation. (Br. at 24 (quoting Cent. Rabbinical Cong., 763 F.3d at 197).)

Finally, there is no merit to New Hope’s argument (Br. at 27) that

the district court engaged in impermissible fact-finding in rejecting New

Hope’s allegation that the adoption scheme is riddled with secular

31
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exceptions. 11 As we demonstrated above, see supra at 27-29, it is self-

evident, and in some cases express in the statutory provisions

themselves, that the provisions on which New Hope relies are intended

to serve the best interests of the child. Thus, no resolution of disputed

facts was required here. And because the Court is “not required to credit

conclusory allegations or legal conclusions couched as factual

allegations,” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014), the district

court properly rejected New Hope’s claim that these other provisions

demonstrate that the nondiscrimination regulation targets religion in

operation.

11 Nor, contrary to New Hope’s repeated assertions (Br. at 14, 31,


33), did OCFS concede in its motion seeking to remove the appeal from
the expedited appeals calendar that the district court had engaged in
fact-finding in dismissing the complaint. In the subject motion, OCFS
explained that, in addition to presenting the question whether New
Hope’s factual allegations (as to neutrality and general applicability)
were sufficient to state an established claim, the appeal presented the
legal question whether New Hope could successfully assert a
constitutional claim to enforcement of a valid and neutral
nondiscrimination law of general application. See Second Cir. Dkt. No.
19-1715, ECF 36, at 7.
32
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2. The Allegations Are Insufficient to Suggest that


Enactment and Enforcement of the
Nondiscrimination Regulation Was Prompted by
Hostility Toward Religion.

New Hope is also wrong to argue that, notwithstanding the facial

neutrality of the nondiscrimination regulation, its allegations are

sufficient to suggest that the regulation is intended to target religious

beliefs, or has been enforced in a manner that does so, and must therefore

satisfy heightened scrutiny. It is true that “[o]fficial action that targets

religious conduct for distinctive treatment cannot be shielded by mere

compliance with the requirement of facial neutrality,” Church of Lukumi

Babalu Aye, 508 U.S. at 534. The Supreme Court has explained that a

law is not neutral if its object “is to infringe upon or restrict practices

because of their religious motivation,” whether the “governmental

hostility” is “overt” or “masked.” Id. at 533-34. But this rule does not

support New Hope’s free-exercise claim because New Hope does not

plausibly allege that the promulgation or enforcement of OCFS’s

nondiscrimination regulation was motivated by religious hostility or

intended to target religious beliefs.

The Supreme Court has explained that the relevant evidence to

determine actual neutrality includes “the historical background of the

33
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decision under challenge, the specific series of events leading to the

enactment or official policy in question, and the legislative or

administrative history.” Church of Lukumi Babalu Aye, 508 U.S. at 540.

Here, the history of the nondiscrimination regulation confirms its neutral

purpose.

OCFS adopted the challenged regulation as part of a regulatory

package that had the valid and neutral purpose of eliminating

discrimination on the basis of sexual orientation and gender identity in

the provision of essential social services, a quintessentially valid public

purpose. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston,

515 U.S. 557, 572 (1995). The regulatory package also sought to “promote

fairness and equality in the child welfare adoption program” by

eliminating outdated regulatory language that had indicated that the

marital status of applicants and the sexual orientation of gay, lesbian,

and bisexual individuals were relevant to applicants’ evaluation as

appropriate adoptive parents. N.Y. State Register (August 7, 2013), at 5.

OCFS promulgated the nondiscrimination regulation after DRL

§ 110 was amended to confirm the right of unmarried and same sex

couples to adopt on terms equal to those applicable to married

34
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heterosexual couples. See N.Y. Laws 2010, c. 509 (codified at DRL § 110).

Soon after DRL § 110 was amended, OCFS informed authorized agencies

that the statutory 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.” OCFS Informational Letter 11-

OCFS-INF-01, at 3 (Jan. 11, 2011). 12 Later that year, OCFS provided

further guidance to authorized adoption agencies to clarify, in light of the

2010 amendment, existing regulations that addressed marital status and

sexual orientation in home-study assessments. At the time, existing

regulations provided that adoption applicants could not be rejected on the

basis of length of marriage, as long as they had been married at least one year,

see 18 N.Y.C.R.R. former § 421.16(e), and provided that while adoption

applicants could not be rejected “solely on the basis of homosexuality,” a

decision to accept or reject an applicant “when homosexuality is at issue”

12 Available at
https://ocfs.ny.gov/main/policies/external/OCFS_2011/INFs/11-OCFS-
INF-01%20Adoption%20by%20Two%20Unmarried%20Adult%20
Intimate%20Partners.pdf.

35
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was to be made on the basis of individual factors, see 18 N.Y.C.R.R.

former § 421.16(h)(2).

In a July 2011 Informational Letter, OCFS explained:

It is important to recognize that all types of families are


potential resources for children awaiting adoption and
should be considered as potential adoptive parents.
Maturity, self-sufficiency, ability to parent, ability to
meet the child’s needs, and availability of support
systems are the critical assessments in identifying
adoptive applicants’ appropriateness for specific
children.

OCFS Informational Letter 11-OCFS-INF-05, at 3 (July 11, 2011).13

OCFS confirmed that under state law, applicants did not have to be

married to adopt; thus, while the length of the relationship could be

considered, the length of marriage was not a valid basis on which to reject

applicants. Id. at 4. OCFS also advised agencies that “discrimination

based on sexual orientation in the adoption study assessment process” is

prohibited. Id. OCFS further stated that it could not

13 Available at
https://ocfs.ny.gov/main/policies/external/OCFS_2011/INFs/11-OCFS-
INF-
05%20Clarification%20of%20Adoption%20Study%20Criteria%20Relate
d%20to%20Length%20of%20Marriage%20and%20Sexual%20Orientatio
n%20.pdf
36
Case 19-1715, Document 120, 10/21/2019, 2685057, Page47 of 76

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. The capacity of the prospective
adoptive parents to meet the needs of children freed for
adoption should be the primary consideration when
making approval or rejection decisions of an adoptive
applicant.

Id.

Then, in 2013, OCFS promulgated the regulation at issue here,

confirming that adoption applicants could not be discriminated against

on the basis of various characteristics, including sex, sexual orientation,

gender identity or expression, and marital status. As part of the same

regulatory package, OCFS eliminated the outdated references to

consideration of the length of marriage and homosexuality in the home-

study assessment. N.Y. State Register (August 7, 2013), at 4. Even

viewing the history of the regulation in the light most favorable to New

Hope, see Papasan v. Allain, 478 U.S. 265, 283 (1986), this history

confirms that the regulation was adopted for a valid and neutral

purpose—to prohibit discrimination against adoption applicants and

bring the regulations into compliance with statutory standards. There is

no indication anywhere that the regulation was targeted at religious

beliefs.

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While New Hope claims (Br. at 32) that the district court

improperly assumed as true OCFS’s statements regarding the purpose of

the nondiscrimination regulation, the court did not do so. Instead, the

court relied on public records to assess the historical context in which the

regulation was promulgated. And the Court’s reliance on these public

records was entirely proper. “It is well established that a district court

may rely on matters of public record in deciding a motion to dismiss

under Rule 12(b)(6).” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67,

75 (2d Cir. 1998) (citing Papasan v. Allain, 478 U.S. at 283); accord State

Employees Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 77 (2d

Cir. 2007). The district court thus properly considered the regulatory

filings, the amendment of DRL § 110, and the policy directives that

implemented that amendment—all public records—in evaluating the

sufficiency of the complaint.

Nor are New Hope’s remaining allegations sufficient to suggest that

OCFS has applied its regulation in a manner hostile toward religion. New

Hope relies on allegations that (1) OCFS by December 2018 removed from

its website the names of several voluntary faith-based agencies

authorized at the start of year to make adoption placements, some of

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which may share New Hope’s views on cohabitating and same-sex

couples, and (2) OCFS officials made four statements indicating they

would not tolerate discriminatory policies.

As to the first allegation, any alleged disparate impact of the

regulation on religiously affiliated agencies flows not from any hostility

to religion, but rather from the fact that social services agencies with

similarly discriminatory policies often have religious affiliations. After

all, there is a long history of social service by religious institutions, as

well as a history of opposition by certain religious groups to cohabitation

outside of marriage and same-sex marriage. See, e.g., Human Rights

Campaign, Religion and Faith: Faith Positions, available at

https://www.hrc.org/resources/faith-positions (last accessed Oct. 16,

2019). “The Free Exercise Clause is not violated even if a particular

group, motivated by religion, may be more likely to engage in the

proscribed conduct.” Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1077 (9th

Cir. 2015).

Indeed, this Court rejected a similar argument in Rector, Wardens,

& Members of Vestry of St. Bartholomew's Church v New York, 914 F.2d

at 354. There the plaintiff church argued persuasively that the facially

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neutral landmarks preservation law would have a disparate impact on

religious institutions because many such institutions have buildings that

fit the statutory criteria, i.e., a building having “special character or

special historical or aesthetic interest or value.” Id. The Court concluded,

however, that any such disparate impact was “not evidence of an intent

to discriminate against, or impinge on, religious belief in the designation

of landmark sites.” Id. So too here. The fact that New Hope’s “conduct

springs from sincerely held and strongly felt religious beliefs does not

imply that [OCFS’s] desire to regulate that conduct springs from

antipathy to those beliefs.” Fulton, 922 F.3d at 159.

Critically, New Hope has not alleged that OCFS declines to enforce

its regulation against authorized agencies who discriminate against

unmarried or same-sex couples on the basis of secular beliefs. Cf.

Masterpiece Cakeshop, 138 S. Ct. at 1730-31 (fact that nondiscrimination

policy was enforced against religiously motivated conduct but not against

analogous secular conduct evidences hostility toward religion). As the

Third Circuit explained in Fulton, in rejecting a free-exercise challenge

to the application of a similar nondiscrimination policy in the foster-care

context, “a challenger under the Free Exercise Clause must show that it

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was treated differently because of its religion. Put another way, it must

show that it was treated more harshly than the government would have

treated someone who engaged in the same conduct but held different

religious views.” Fulton, 922 F.3d at 154. Because New Hope does not

allege it was treated more harshly than secular agencies that similarly

discriminate against unmarried and same-sex couples, its allegations of

disproportionate impact do not give rise to an inference of disparate

treatment. See Rector, Wardens, & Members of Vestry of St.

Bartholomew's Church, 914 F.2d at 354.

As to the remaining allegations involving statements by OCFS

officials, which New Hope quotes in its complaint but misleadingly

describes in its brief, they establish only that OCFS does not tolerate

discrimination, whatever its source. New Hope alleges four statements

for this purpose: (1) a statement by an OCFS spokesperson that “[t]here

is no place in New York for providers that choose not to follow the law”

(JA43); 14 (2) a statement that the repeal of the regulations that allowed

14 Rather than quote the statement in its brief, New Hope


misleadingly describes it as OCFS’s “avowed goal of driving providers
(continued on the next page)

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an adoption applicant to be rejected on the basis of marital status and

allowed unfavorable consideration of homosexual orientation was

intended to “eliminate archaic regulatory language” (JA35); 15 (3) a staff

member’s reference to the fact that “[s]ome Christian ministries have

decided to compromise and stay open” (JA40); and (4) a statement in the

policy directive, issued in response to the 2010 amendment to DRL § 110,

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” (JA34).

Contrary to New Hope’s argument (Br. at 30, 32-33), these

statements do not resemble the statements of the adjudicatory

administrators that troubled the Supreme Court in Masterpiece

Cakeshop. See 138 S. Ct. at 1729. Unlike those statements, which evinced

an “animosity to religion or distrust of its practices,” id. at 1731, the

statements at issue here are neutral toward religion and indicate only

who will not conform their policies to align with OCFS’s beliefs out of the
State of New York.” (Br. at 30 (citing JA43).)
15 New Hope misleadingly characterizes this statement as OCFS
labeling New Hope’s beliefs as “archaic.” (Br. at 30 (citing JA35).)
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that, consistent with state law, OCFS will not tolerate discriminatory

action in contravention of its regulation.

Indeed, the only statements cited by New Hope that resemble in

any way any of the statements of the adjudicatory commissioners at issue

in Masterpiece Cakeshop, are the statements that there is “no place in

New York” for authorized agencies that will not follow the law and the

reference to the fact that other faith-based authorized agencies with

similar beliefs continue to provide adoption services in accordance with

New York law. While New Hope argues that the Supreme Court found

similar sentiments problematic in Masterpiece Cakeshop,16 in fact the

Court found only that such statements “are susceptible of different

interpretations.” 138 S. C. at 1729. “On the one hand, they might mean

simply that a business cannot refuse to provide services based on sexual

orientation, regardless of the proprietor’s personal views. On the other

16 In Masterpiece Cakeshop, at a public hearing concerning the


plaintiff’s case, one of the seven commissioners responsible for applying
the nondiscrimination policy to plaintiff’s case stated that a business
person “cannot act on his religious beliefs ‘if he decides to do business in
the state’” and later restated the same position, stating “‘if a businessman
wants to do business in the state and he’s got an issue with the—the law’s
impacting his personal belief system, he needs to look at being able to
compromise.’” 138 S. Ct. at 1729 (citing the hearing transcript).
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hand, they might be seen as inappropriate and dismissive comments

showing lack of due consideration for [plaintiff’s] free exercise rights and

the dilemma he faced.” Id. However, it was only “[i]n view of the

comments that followed,” that the Court was troubled by these otherwise

ambiguous statements. In his subsequent comments, the Commissioner

made clear his distrust of and hostility toward plaintiff’s religious views,

comparing plaintiff’s views to religious justification of slavery and the

holocaust and stating such religious justification is “‘one of the most

despicable pieces of rhetoric that people can use to—to use their religion

to hurt others.’” Id. (citing the hearing transcript).

Here, in contrast, according to New Hope’s allegations, the

arguably ambiguous comments on which New Hope relies were neither

followed nor preceded by any comments that expressed a view hostile

toward New Hope’s religious beliefs. Instead, the remaining two

comments cited by New Hope—that the regulatory amendments that

brought the regulations in line with the 2010 amendment to DRL § 110

had removed “archaic” regulatory language and the explanation in the

policy directive that in light of the change in the law sexual orientation

was not a legitimate basis to deny an adoption application—merely

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acknowledge that the legal landscape had changed in light of the Court

of Appeals decision in In re Jacob, 86 N.Y.2d 651, and the 2010

amendment to DRL § 110. Moreover, all of the problematic statements in

Masterpiece Cakeshop were made in direct reference to the plaintiff’s case

by the very adjudicators responsible for deciding the plaintiff’s

discrimination claim. Here, three of the cited statements were general

pronouncements about the regulatory amendment and the statutory

amendment that preceded it. The cited statements together merely

express OCFS’s view that its nondiscrimination regulation is consistent

with state law and must be followed by all authorized agencies. These

statements are thus insufficient to suggest that New Hope was targeted

because of its religious beliefs. See Fulton, 922 F.3d at 156-57 (finding

remarks in such “grey zone” insufficient to demonstrate that foster care

agency was targeted because of its religious beliefs).

For all of these reasons, New Hope fails to state a free-exercise

claim.

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POINT II

NEW HOPE FAILS TO STATE A FREE-SPEECH CLAIM

The district court properly found that the complaint fails to state a

free-speech claim because the regulation addresses conduct, not speech.

“[F]reedom of speech prohibits the government from telling people

what they must say,” not what they must do. Rumsfeld v. Forum for

Academic & Institutional Rights, Inc., 547 U.S. 47, 61 (2006) (“FAIR”).

The Supreme Court has made clear that nondiscrimination laws like that

at issue here “regulate[] conduct, not speech.” Id. at 60.

The law at issue in FAIR required law schools to grant military

recruiters equal access to their campuses. As the Supreme Court

explained, the law thus affected “what law schools must do—afford equal

access to military recruiters—not what they may or may not say.” Id.

(emphasis in original). The same is true here: OCFS’s nondiscrimination

regulation requires providers of adoption services to afford equal access

to all prospective adoptive parents.

In FAIR, the Supreme Court confirmed the longstanding principle

that prohibitions on discrimination regulate conduct, not speech, even if

they may impact statements about access to goods or services. “Congress,

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for example, can prohibit employers from discriminating in hiring on the

basis of race. The fact that this will require an employer to take down a

sign reading ‘White Applicants Only’ hardly means that the law should

be analyzed as one regulating the employer's speech rather than

conduct.” FAIR, 547 U.S. at 62.

Similarly here, when New York prohibits adoption-service

providers from discriminating against same-sex couples and unmarried

couples, it is prohibiting conduct. Its regulation does not constitute a

prohibition on speech merely because it prevents an agency from

announcing that it will accept “Single and Married Heterosexual

Applicants Only.”

As the Supreme Court has explained, “[p]rovisions like these are

well within the State’s usual power to enact when a legislature has

reason to believe that a given group is the target of discrimination, and

they do not, as a general matter, violate the First or Fourteenth

Amendments.” Hurley, 515 U.S. at 572; see also N.Y. State Club Assn. v

City of N.Y., 487 U.S. 1, 13 (1988) (rejecting First Amendment challenge

to ordinance that prohibited clubs with a specified number of members

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from excluding individuals on the basis of various protected

characteristics).

Hurley permitted the plaintiff parade organizer to assert a free-

speech challenge to a nondiscrimination law only because the law was

being applied to the parade organizer in a “peculiar way.” Id. at 572. Gay

and lesbian individuals were not excluded from participating in the

parade; instead they were prevented from marching as “a group

imparting a message the organizers do not wish to convey.” 515 U.S. at

559, 572. The free-speech rights of the parade organizer were implicated

only because of the expressive character of the parade itself and the effect

on that expressive character of including a group of marchers with an

identified message with which the parade organizer disagreed. Id. at 572-

74, 576-77, 578. Application of the nondiscrimination law at issue thus

burdened free-speech rights because it regulated “expressive activity.” Id.

at 578.

Not so here. The activities of reviewing an adoption application,

conducting a home study, and making a placement decision pursuant to

statutory standards are quite different from the expressive activity at

issue in Hurley. OCFS’s nondiscrimination regulation requires New Hope

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to exercise its statutory powers in a manner that is neutral as to marital

status and sexual orientation; the regulation does not compel New Hope

to disseminate an ideology with which it disagrees. Cf. Wooley v.

Maynard, 430 U.S. 705, 713-14 (1977) (individual may not be forced to

disseminate state’s ideological message on his license plate).

Contrary to the claim of amicus Becket Fund for Religious Liberty

(Becket Fund Br. at 15), the fact that New Hope’s evaluation of adoption

applications and engagement in the home-study process require verbal

and written communications does not make that evaluation and

engagement an expressive activity. As the Supreme Court has explained,

requiring a course of conduct does not abridge freedom of speech “merely

because the conduct was in part initiated, evidenced, or carried out by

means of language, either spoken, written, or printed.”

FAIR, 547 U.S. at 62 (internal quotation omitted). New Hope no more

engages in protected speech by evaluating prospective adoptive parents

under state criteria than does an employer who evaluates a candidate for

employment using nondiscriminatory criteria. As we have explained,

OCFS’s nondiscrimination rule is akin to laws prohibiting discrimination

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in employment practices. And the Supreme Court has squarely held that

such laws regulate conduct, not speech.

To the extent New Hope argues (Br. at 40) that complying with the

regulation will dilute its message, its claim fares no better. “The First

Amendment does not prevent restrictions directed at commerce or

conduct from imposing incidental burdens on speech.” Natl. Inst. of

Family & Life Advocates v Becerra, 138 S. Ct. 2361, 2373 (2018) (internal

quotation omitted). As the Court explained in Planned Parenthood v.

Casey, 505 U.S. 833, 884 (1992), the State could require the use of specific

informed-consent language because the requirement regulated speech

“only as part of the practice of medicine, subject to reasonable licensing

and regulation by the State.” Similarly here, any effect that OCFS’s

regulation has on New Hope’s speech is incidental to the regulation of

New Hope’s conduct.

Indeed, New Hope does not suggest that OCFS has ever sought to

use its regulation to restrict New Hope’s speech, as opposed to its

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conduct. 17 Nor could it; to date, all that OCFS has done is seek to regulate

New Hope’s conduct——its refusal to provide adoption services to or

place children with unmarried and same-sex couples. Because OCFS has

taken no further enforcement action, New Hope can allege no facts

suggesting that in the absence of discriminatory conduct, OCFS intends

to regulate speech rendered in the course of New Hope’s conduct.

New Hope’s reliance on Matal v. Tam, 137 S. Ct. 1744 (2017), is

thus entirely misplaced. In Matal, the Court held that the fact that

government required registration of a private entity’s trademark did not

transform the private speech communicated in the trademark into

government speech. The Court explained that the trademark law did not

authorize the government to review proposed trademarks for consistency

with government policy. Id. at 1758. Rather, if a submitted trademark

met the viewpoint neutral statutory requirements, registration was

mandatory, even if the government found the trademark offensive. Id. As

17 The district court observed that the regulation likely did not
address such speech. (JA269-270.)

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we have just demonstrated, however, OCFS’s nondiscrimination does not

restrict private speech. It regulates conduct.

The district court nonetheless went on to rule, in the alternative,

that New Hope could not state a free-speech claim, even if OCFS enforced

the nondiscrimination regulation by restricting speech rendered in the

course of providing adoption services. (JA268.) The district court thus

addressed a hypothetical question, which New Hope devotes a

substantial portion of its brief addressing (Br. at 41-45). This Court need

not and should not address such a hypothetical question.

To the extent the Court nonetheless wishes to do so, Matal would

not support New Hope’s claim in any event. Unlike the trademark at

issue in Matal, New Hope is not merely registered with a governmental

entity. As an “authorized agency” under state law, it wields significant

influence over the creation of familial relationships, one of the most

powerful legal structures in people’s lives. And New York long ago chose

to replace a system in which private entities provided adoption services

with little government oversight with a highly regulated regime in which

the State partners with public and private entities to provide adoption

services. Under this regime, the provision of those services is in effect a

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public service, as the district court recognized (JA282.) As we previously

explained, see supra at 5-7, New Hope exercises the same powers in

providing adoption services that every local commissioner of social

services exercises. By providing adoption services under this statutory

scheme, New Hope has “chosen to partner with the government to help

provide what is essentially a public service,” Fulton, 922 F.3d at 161.

Amicus Becket Fund predicts a parade of horribles will follow from

the district court’s alternative ruling. It is simply not true, however, that

the subject ruling would permit the State to coerce private entities to

promote a particular government message by threatening to withhold a

license, tax benefit, or other incidental government benefits. (Becket

Fund Br. at 21-22.) New Hope is not merely licensed to provide adoption

services. It is imbued with tremendous authority over the formation of

legal and familial relationships when it provides in partnership with the

State what are in effect public services.

Indeed, notwithstanding that New Hope operates as a privately

funded agency, the rule regarding speech restrictions in government-

funded programs is instructive. In that context, the Supreme Court held

in Rust v. Sullivan, 500 U.S. 173 (1991), that the government can

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regulate speech rendered in the contours of a government-funded

program. Id. at 193. But as the Court has since made clear, the

government cannot require a program participant to espouse the

government’s message outside of the regulated program, on its “own dime

and time.” Agency for Intl. Dev. v. Alliance for Open Soc’y Int’l, Inc., 570

U.S. 205, 218-19 (2013).

Even though New Hope is not operating a government-funded

program, state law authorizes it to provide what is quintessentially a

public service under a highly regulated regime. And as part of that

regime, OCFS has merely defined the contours of the regulated services:

applicants may not be rejected and placement decisions may not be made

on the basis of protected characteristics. While the extent of any

restriction on New Hope’s expressive activities within the contours of its

provision of adoption activities remains unclear—and is not challenged

by New Hope’s complaint, see supra at 50—there is no question that New

Hope remains free to espouse its beliefs about marriage and family,

including by advocating for adoptions by married heterosexual couples,

outside the contours of its provision of those adoption services.

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For all of these reasons, the nondiscrimination regulation does not

impermissibly regulate New Hope’s speech.

POINT III

NEW HOPE FAILS TO STATE AN EXPRESSIVE-ASSOCIATION


CLAIM

The district court properly found that the complaint fails to state

an expressive-association claim for either of two reasons. First, the First

Amendment’s right to expressive association is not implicated because

New Hope is not a group whose purpose is to associate with others for

expressive purposes. Second, if that right is implicated, any burden on it

is merely incidental and thus insufficient to state a claim.

A. New Hope’s Right to Expressive Association Is Not


Implicated.

As New Hope recognizes (Br. at 46), the First Amendment protects

the “right to associate with others in pursuit of a wide variety of political,

social, economic, educational, religious, and cultural ends.” Dale, 530

U.S. at 647 (internal quotation omitted). But not every group can assert

an expressive-association right; the right can be asserted only by those

engaged in “expressive association.” Id. at 648.

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Moreover, a mere kernel of expression is not sufficient; “the fact

that an activity contains a ‘kernel of expression’ does not compel the

conclusion that the activity qualifies as a form of ‘expressive association’

and is shielded by the First Amendment.” United States v. Thompson,

896 F.3d 155, 164 (2d Cir. 2018) (quoting Dallas v. Stanglin, 490 U.S. 19,

25 (1989)). The group’s conduct must instead be intended “‘to convey a

particularized message.’” Id. (quoting Texas v. Johnson, 491 U.S. 397

(1989)).

Thus in Dale, the Supreme Court found that the Boy Scouts

engaged in a form of expressive association because the very purpose of

the Scouts was “‘to instill values in young people.’” Dale, 530 U.S. at 649

(quoting mission statement). And because the Boy Scouts accomplished

this goal by having leaders who “inculcate [the youth members] with the

Boy Scouts’ values—both expressly and by example,” the forced inclusion

of a leader whom the Boy Scouts felt did not represent its values impaired

its expressive-association right. Id. at 649-50, 656. Key to the Court’s

conclusion was the fact that the Boy Scouts existed to “transmit such a

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system of values”; it was therefore an association that engaged in

expressive activity. 18 Id. at 650.

Likewise, in Roberts, a “not insubstantial part” of the Jaycees'

activities constituted “protected expression on political, economic,

cultural, and social affairs.” 468 U.S. at 626. The organization took public

positions on diverse issues and members regularly engaged in lobbying

and other activities the Court found “worthy of constitutional protection

under the First Amendment.” Id. at 626-27. Thus the Supreme Court

considered whether a requirement to include women as full voting

members would impact the Jaycees’ expressive activities, before

determining that it would not. Id. at 627.

18 In stating that “associations do not have to associate for the


‘purpose’ of disseminating a certain message in order to be entitled to the
protections of the First Amendment,” Dale, 530 U.S. at 655, the Court
was not contradicting its earlier statement that a group has a protected
expressive-association right only if it is formed for the purpose of and
engages in protected expression. Rather, the Court’s statement was
intended to refute the claim that an organization must be formed for the
specific purpose of disseminating the particular message at issue in
litigation. On that view, the expressive-association right of the Boy
Scouts would have been implicated only if it were formed for the specific
purpose of promoting an anti-gay message. In the statement relied on by
New Hope, the Supreme Court rejected that view. Id. at 655-56.

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In contrast here, New Hope is not open to membership and was not

organized for the purpose of engaging in expressive activities. While New

Hope’s provision of adoption services likely entails verbal and written

communications, its mission is not to engage in protected speech or to

inculcate values to its members, but to “care for and find adoptive homes

for children whose birthmothers or parents c[an] not care for them.”

(JA10.) This is a far cry from the forms of expressive association that the

Supreme Court has found entitled to First Amendment protection.

Consequently, New Hope is not a group that engages in “expressive

association” within the meaning of the First Amendment, see Dale, 530

U.S. at 648.

To be sure, requiring New Hope to provide equal access to its

services without regard to marital status or sexual orientation will

compel it to associate with unmarried and same-sex couples in the sense

of interacting with them for the purpose of assisting them to become

adoptive parents. But just as the right of association was not infringed

by a rule requiring law schools to interact with military recruiters by

allowing them on campus and providing the same incidental services

provided to other recruiters, see FAIR, 126 S. Ct. 1297, New Hope’s right

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of association is not infringed here. The right of association is infringed

only when a group is organized for expressive purposes and is forced to

alter its selection of members or constituents, interfering with the critical

means by which a group “express[es] those views, and only those views,

that it intends to express.” Dale, 530 U.S. at 648.

B. Even Assuming New Hope’s Right to Expressive


Association Is Implicated, Any Burden on that Right Is
Too Incidental to State a Claim

Even if OCFS’s nondiscrimination regulation implicates New

Hope’s expressive-association right, any burden on that right is merely

incidental, and is thus insufficient to state a claim. “Mere incidental

burdens on the right to associate do not violate the First Amendment;

rather, to be cognizable, the interference with plaintiffs’ associational

rights must be direct and substantial or significant.” Tabbaa v. Chertoff,

509 F.3d 89, 101 (2d Cir. 2007) (internal quotation and alteration from

original omitted); accord Fighting Finest v. Bratton, 95 F.3d 224, 228 (2d

Cir. 1996) (citing Lyng v. Intl. Union, 485 U.S. 360, 367 & n.5 (1988)).

Here, they are neither. As the district court correctly reasoned (JA272),

the nondiscrimination rule does not burden any expressive-association

right that may exist here in either a direct or substantial way.

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Although New Hope asserts a viewpoint about the marital status

and sexual orientation of adoptive parents, it does not accept those

individuals as members of its organization merely by providing services

to them as required by state law. See Dallas v. Stanglin, 490 U.S. 19, 24

(1989) (dance hall patrons do not associate for expressive purposes).

Indeed, were the rule otherwise, no organization that engaged in

expressive activities could be required to serve members of the general

public in a nondiscriminatory manner. Such transactional association

does not directly or substantially interfere with any of New Hope’s

alleged associational rights.

Nor, contrary to New Hope’s claim (Br. at 48-49), is its claimed

interest in not serving unmarried or same-sex couples like the interest in

soliciting certain legal clients that the Supreme Court found protected in

NAACP v. Button, 371 U.S. 415 (1963). There the Court held that a legal

advocacy organization’s solicitation of clients was protected under the

First Amendment because the organization sought to solicit plaintiffs in

order to pursue social-justice litigation, an activity the Court found

involved political speech. See id. at 429. Similarly, in In re Primus, 436

U.S. 412 (1978), the Court found that the ACLU’s solicitation of clients

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was protected under the First Amendment, not because the ACLU had a

general First Amendment right to associate with the clients of its choice,

but because the litigation it pursued was a “‘form of political expression’

and ‘political association.’” Id. at 428 (quoting Button, 371 U.S. at 429,

431).

These cases thus recognize that solicitation of clients may be

protected under the First Amendment in the narrow circumstance when

the solicitation is directly related to furthering political expression. The

rule of Button has no application here because New Hope does not select

clients to further any expressive activity; it selects clients to place

children for adoption. “The Supreme Court has never held . . . that

attorneys have their own First Amendment right as attorneys to

associate with current or potential clients.” Jacoby & Meyers, LLP v.

Presiding Justices of the First, Second, Third & Fourth Depts., 852 F.3d

178, 186 (2d Cir. 2017) (emphasis in original). New Hope has thus failed

to cite any authority for the proposition that a purveyor of goods or

services has a general First Amendment right to select clients in a

discriminatory manner.

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Finally, OCFS is not enforcing its nondiscrimination regulation for

the very purpose of altering New Hope’s expression. OCFS’s enforcement

merely “assur[es] its citizens equal access to publicly available goods and

services”—a goal “which is unrelated to the suppression of expression

[and] plainly serves compelling state interests of the highest order.”

Roberts, 468 U.S. at 624 (rejecting challenge to application of equal-

access law that required Jaycees to include women as full voting

members). Thus, as the district court found (JA272-273), even if the

nondiscrimination regulation impairs New Hope’s right to expressive

association in some minimal way, enforcement of the regulation would

not unconstitutionally violate that right. See id. (finding no constitutional

violation where state’s compelling interest in public accommodation law

outweighed any minimal impact on organization’s expressive activities).

POINT IV

IF THE COURT REINSTATES THE COMPLAINT, IT SHOULD


REMAND TO ALLOW THE DISTRICT TO RULE ON THE
PRELIMINARY INJUNCTION MOTION IN THE FIRST INSTANCE

The district court properly dismissed as moot New Hope’s motion

for a preliminary injunction on finding that the complaint fails to state a

legally cognizable First Amendment claim. If the Court disagrees and

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reinstates the complaint, it should nonetheless reject New Hope’s

suggestion that the Court resolve the merits of the preliminary injunction

motion in the first instance.

A district court’s decision to deny a preliminary injunction is

reviewed for abuse of discretion. See, e.g., Ragbir v Homan, 923 F.3d 53,

62 (2d Cir. 2019). Here, however, the district court never exercised its

discretion, instead dismissing the motion for a preliminary injunction as

moot. There is therefore no exercise of discretion for the Court to review.

Although New Hope cites a few cases (Br. at 50) in which the Court

directed entry of an order granting preliminary relief, none of those cases

involved a situation like that here, where the district court had not

determined the likelihood of success and the balance of the hardships

itself in the first instance.

Accordingly, if the Court concludes that the district court erred in

dismissing the complaint, the Court should not resolve the merits of the

preliminary injunction motion in the first instance, but remand to the

district court for it to do so. See id. at 78-79 (remanding to district court

to consider merits of preliminary injunction motion where the court had

erroneously dismissed the complaint for lack of subject matter

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jurisdiction); see also Frontera Resources Azer. Corp. v. State Oil Co. of

the Azer. Republic, 582 F.3d 393, 401 (2d Cir. 2009) (remanding to district

court to exercise its discretion in the first instance where it had applied

incorrect legal standard); Consorti v. Armstrong World Indus., 103 F.3d

2, 4-5 (2d Cir. 1995) (same).

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CONCLUSION

Judgment dismissing the complaint should be affirmed.

Dated: Albany, New York


October 21, 2019

Respectfully submitted,

LETITIA JAMES
Attorney General
State of New York
Attorney for

By: . /s/ Laura Etlinger


LAURA ETLINGER
Assistant Solicitor General

The Capitol
Albany, New York 12224
Barbara D. Underwood (518) 776-2028
Solicitor General
ANDREA OSER
Deputy Solicitor General
LAURA ETLINGER
Assistant Solicitor General
of Counsel

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CERTIFICATE OF COMPLIANCE

Pursuant to Rule 32(a) of the Federal Rules of Appellate Procedure,


Laura Etlinger, an employee in the Office of the Attorney General of the
State of New York, hereby certifies that according to the word count
feature of the word processing program used to prepare this brief, the
brief contains 12,191 words and complies with the typeface requirements
and length limits of Rule 32(a)(5)-(7).

. /s/ Laura Etlinger .

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