Taking Away Foster Parenting License Based on Religious Views About Homosexuality May Violate First Amendment

From Lasche v. N.J., decided yesterday by the Third Circuit, in an opinion by Judge Peter Phipps, joined by Judges Thomas Hardiman and Robert Cowen:

Two foster parents with religious views against same-sex marriage and homosexual conduct had their foster child removed and their foster license suspended. The foster parents claim that a New Jersey state agency took those actions based on their religious beliefs….

A Christian couple in New Jersey, Michael and Jennifer Lasche, have "traditional values and beliefs about family, marriage and sex." For over ten years, they served as foster parents.

In September 2017, the Monmouth County Office of the New Jersey Division of Child Placement and Permanency ('DCPP') contacted the Lasches about fostering two children. The children were sisters, one was thirteen ('Foster Child 1') and the other was ten ('Foster Child 2'). They also had three younger siblings who were placed in foster care. After speaking with a DCPP caseworker, Kyle Higgins, and her supervisor, Katie Epperly, the Lasches agreed to foster the two girls.

By November 2017, the girls' biological parents no longer retained any parental rights, and in October and December the Lasches heard from the caseworker, Higgins, that they were under consideration to adopt the girls.

But three weeks after informing the Lasches that they might be able to adopt the children, Higgins told the Lasches that a couple in Illinois was interested in adopting all five siblings. The Lasches inquired about the prospective adoptive family, and both Higgins and her supervisor, Epperly, stated that they did not know the answers to those questions. Later, in discussing the putative adoption with the foster parents for the other siblings, the Lasches learned that the Illinois couple was "two wealthy gay men with lots of family around to support them and the adoption."

A few days later, Higgins came to the Lasches' home and questioned Foster Child 1 about whether she would change her religious beliefs about homosexual conduct—which she held before meeting the Lasches—if she were placed with another family. About four months later, for reasons that remain confidential, the Lasches and DCPP agreed that Foster Child 2 should be removed from the Lasches' home.

During that time and for two months afterwards, the prospective adoption of all five siblings by the Illinois couple remained under consideration. In a meeting with Higgins and the therapist for Foster Child 1 in May 2018, Jennifer Lasche stated that she did not oppose allowing Foster Child 1 to spend time with her siblings to see if she wanted to be adopted with them. At that meeting, Jennifer Lasche also received an update on the adoption process. Higgins explained that DCPP would present two placement options at an upcoming court hearing, and DCPP would not take a position on either. The first option was for the children to be adopted by their current foster families; the second was for the Illinois couple to adopt all five children.

The hearing on June 4, 2018, was eventful. The Illinois couple no longer had an interest in adopting any of the five siblings. And the judge indicated that the children needed psychiatric evaluations moving forward.

After that hearing, inquiries about the Lasches' religious beliefs intensified. Later that month, Foster Child 1 came home from a therapy session visibly upset because the therapist repeatedly brought up religion and told her not to feel pressured to follow the Lasches' religious beliefs. When Jennifer Lasche confronted the therapist, the therapist relayed that she and Higgins had previously discussed the Lasches' "ideas about same-sex couples." Later, after picking up Foster Child 1 for her sibling visit, Higgins and an unnamed woman stopped at a Dunkin' Donuts where they questioned Foster Child 1 about her religious beliefs. Although Higgins told Foster Child 1 that the Lasches could not "meet her needs," that did not dissuade Foster Child 1 from wanting to remain with the Lasches.

Around that same time, Higgins called Jennifer Lasche to discuss transitioning Foster Child 1 to her foster brother's home. That news came as a surprise to Jennifer Lasche because she was under the impression that since adoption by the Illinois couple was no longer an option, the children would be adopted by their current foster families.

Shortly afterwards, DCPP scheduled a meeting with the Lasches to discuss Foster Child 1's best interests. During the call to schedule the meeting, Epperly previewed her concern that the Lasches influenced Foster Child 1 and Foster Child 2 with their views on same-sex relationships. The meeting on June 29, 2018, at the Monmouth County DCPP office involved several people: the Lasches, their attorney, four DCPP employees (Kyle Higgins, Katie Epperly, Mary Lippencot, and Janelle Clark), one or two additional DCPP representatives, and an attorney for the State of New Jersey.

The central topic of the meeting was the Lasches' religious beliefs about the sinfulness of homosexual conduct. The DCPP employees expressed concern about the Lasches' belief that homosexual conduct was a sin, and they agreed that the Lasches' religious beliefs were a problem. They also sought assurance from the Lasches that they would not reject Foster Child 1 if she ever decided to explore her sexuality. One DCPP representative remarked that Foster Child 1 would need therapy to deal with her belief that homosexual conduct is a sin.

A few days later, the Lasches again received surprising news. On July 2, 2018, without providing the Lasches with the statutorily required notice, DCPP representatives went to family court and sought the removal of Foster Child 1 from the Lasches' custody. Foster Child 1's law guardian—an attorney appointed to provide legal representation to children in family court on matters involving allegations of abuse and neglect, or the potential termination of parental rights—attended the hearing and objected to the removal of Foster Child 1 from the Lasches' home. The next day, however, Foster Child 1 was removed and placed in the same home as Foster Child 2.

Three months later, the Lasches learned something else that they should have known earlier. During the annual inspection for foster-parent license renewal, they discovered that DCPP had suspended their license without notice or explanation….

The District Court dismissed the Lasches' § 1983 claim against the individual-capacity defendants for First Amendment retaliation on two grounds. First, it concluded that, as a matter of law, foster parents sharing religious views with their foster children was not constitutionally protected conduct. Second, it determined that the complaint did not contain plausible allegations of a causal link between the Lasches' religious beliefs and the alleged retaliatory actions…. Because the District Court erred in both of its conclusions, we will partially vacate its orders, leaving initial consideration of the qualified-immunity defense for the District Court on remand….

Through the Free Exercise Clause, the First Amendment secures the "freedom to believe and [the] freedom to act." Consistent with that protection, the Lasches allege two forms of constitutionally protected activity—one involving religious belief, and the other, action inspired by religious belief.

With respect to belief, the Lasches identify their religious opposition to same-sex marriage as constitutionally protected. That is correct: the Free Exercise Clause provides an absolute right to hold religious beliefs.

The Lasches also allege a plausible claim of retaliation for sharing their views on same-sex marriage with Foster Child 1. The Supreme Court has invalidated governmental regulation of faith-inspired action that is not neutral and generally applicable. See, e.g., Fulton v. City of Phila. (2021) (holding that a city's non-discrimination policy was not generally applicable because it allowed for individualized, discretionary exemptions); see also Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts. Comm'n (2018) (explaining that state action based on "hostility to a religion or religious viewpoint" violates the state's obligation under the Free Exercise Clause to "proceed in a manner neutral toward" religion); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah (1993). And here, the individual-capacity defendants do not identify a neutral, generally applicable basis for their treatment of the Lasches. Nor is such a reason apparent from the pleadings. For instance, the Lasches' actions do not conflict with the biological parents' rights because Foster Child 1's father's rights were terminated and her mother abandoned her parental rights. Thus, the Lasches plausibly allege that they engaged in constitutionally protected conduct by sharing their religious views on same-sex marriage with Foster Child 1. See Obergefell v. Hodges (emphasizing that the First Amendment ensures "that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned")….

The Lasches also plausibly allege that the individual-capacity defendants acted to remove Foster Child 1 from their care and suspended their foster license. Both of those actions would deter people "of ordinary firmness from exercising [their] constitutional rights," and for that reason they qualify as retaliatory….

To complete their claim, the Lasches must allege facts that their constitutionally protected activity was a "substantial or motivating factor" for the retaliatory actions…. Here, the timing of the retaliatory actions would ordinarily suffice for causation…. But as to the removal of Foster Child 1, an intervening court order may interrupt a causal chain if the court was "provided with the appropriate facts." And here, the Lasches allege only that they did not receive the statutorily required notice of the court hearing. They do not allege that the family court lacked the appropriate facts. Nor do they allege that the individual defendants misled the court as to the relevant facts. Without those allegations, the family court order interrupts the causal chain regarding the removal of Foster Child 1. Thus, the District Court did not err in dismissing the Lasches' First Amendment retaliation claim related to the removal of Foster Child 1. {[But] the court order was for the removal of Foster Child 1—not for the suspension of the Lasches' foster license, and thus that component of the Lasches' claim survives the motion to dismiss.} …

The court also allowed plaintiffs to go forward with their claim that the defendants violated New Jersey law banning religious discrimination in public accommodations, noting that New Jersey courts had interpreted the law broadly, to cover programs (including government programs) and not just physical places.