Monthly Archives: July 2020

Religious freedom and adoption

July 26 2020 By Connie Reguli

On July 21, 2020 the Second Circuit court ruled on a case out of New York which attempted to shut down a faith based adoption agency (New Hope Family Services) because they refused to consider same-sex couples. This is a win for faith based adoption agencies.

Last year in Pennsylvania, the state agency refused to send referrals for adoption to Catholic Charities because CC refused to consider same-sex couples. The United States Supreme Court has agreed to hear this appeal out of Third Circuit and will likely do so this fall.

NEW YORK & SECOND CIRCUIT

In Second Circuit several civil rights organizations opposed the New Hope adoption agency by filing amici briefs such as the Americans United for Separation of Church and State.

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Amicus Brief Cover

On reviews of the arguments, this organization claims that the regulation is First Amendment neutral and does not affect the autonomy of the church. However it claims that to allow the church relief is detrimental to the health and welfare of the LBGTQ population.

Issues summary Amicus Brief. T t

This issue is headed to the United States Supreme Court because of a Third Circuit decision out of a court in Pennsylvania.

PENNSYLVANIA AND THIRD CIRCUIT

BPNEWS reported – The U.S. Supreme Court is expected to weigh in on the intersection of religious liberty and same-sex marriage in foster care and adoption during its next term, which begins in October. The justices agreed in February to review a Third Circuit Court of Appeals ruling that the city of Philadelphia did not violate religious freedom by halting referrals to Catholic Social Services because the agency does not place children in the homes of same-sex couples.

The Third Circuit opinion is captioned Fulton Et al v City of Philadelphia Et al. Case No. 18-2574, but is well known as the Catholic Charities case. The court said this:

Excerpt of Third Circuit Opinion

In layman’s terms, Catholic Charities lost. The state was allowed to refuse placements and referrals to CC due to their exclusion policy.

Over 200 (I stopped counting) persons and organizations of interest filed briefs and participated in the appeal. Several states including Texas, Illinois, Delaware, California, Oregon, Vermont, New Jersey, New York, Massachusetts Washington, and Rhode Island, also participated.

FEDERAL SOLUTION?

The Ethics & Religious Liberty Commission (ERLC) proposed a federal solution to the problem for faith-based agencies which is a priority in its legislative agenda. It has worked for adoption of the Child Welfare Provider Inclusion Act, which would bar government discrimination against adoption agencies and other child welfare entities that refuse to take part in serving in a way that contradicts their beliefs.

TENNESSEE LEGISLATES RELIGIOUS FREEDOM.

In NASHVILLE (BP) — Tennessee state senators approved legislation Jan. 14 that would prohibit the state from forcing Christian or other faith-based adoption agencies to place children in homes that would “violate the agency’s written religious or moral convictions or policies.”Senate Bill 1304 passed the Senate by a margin of 20-6. Sen. Steve Dickerson of Nashville was the only Republican voting against the bill, joining the chamber’s five Democrats, according to an article in The Tennessean.

The bill will now go to Gov. Bill Lee for his signature, having passed the house last year by a 67-32 margin.

The bill was opposed by gay rights activist groups and those who felt the bill would have a negative impact on the state’s economy.

Dickerson, in speaking against the legislation, said passage of the bill could cause the state to suffer an adverse financial impact because of “bad public policy,” The Tennessean reported.

According to The Tennessean, eight states across the country have passed similar legislation. The paper also reported it had contacted the governor’s office and received confirmation the governor “would be signing the bill as soon as it reaches his desk.”

WHERE WILL THIS GO?

This ruling by the United States Supreme Court will be precedental. In 2015 the Supreme Court ruled on Oberfell v Hodges which found that the states could not prohibit same-sex marriage. It found that the right to marry was a fundamental liberty and the states could not prohibit marriage based on the gender of the couple.

The adoption issue raises another fundamental liberty issue and it is likely that that the LBGTQ community will claim that the right to parent is a fundamental liberty. However there is no fundamental liberty to adopt.

What is disturbing to me is that the rights of children are not represented here. We already have children removed from heterosexual families and placed in LBGTQ homes for foster to adopt. Do the children have a fundamental liberty to not be placed in this unit? What is the next extension? Will the state welfare agencies accept transgenders as fosters?

We are on a slippery slope. Our national laws regarding relations, family, and marriage are complicated and distorted. A century ago sexual deviation was criminal. It was even illegal to live with or marry your paramour if you cheated during your marriage with that person. Now it is common. As a divorce attorney I saw it all the time.

We have much to do as a nation in this area. Pray for wisdom and pray for our country.

KY District Court makes a giant leap for parents’ rights.

By Connie Reguli July 12, 2020

In the Eastern District of Kentucky, the Court has denied summary judgment on substantive and procedural due process claims where the social worker threatened a Mother to put her child under an “immediate protection agreement” regarding her three year old daughter when her child had a bite mark on her back. The child reported to her grandmother that a child in her daycare had bitten her. The grandmother reported it to the daycare and the daycare called in a referral claiming that the bite mark did not appear to have come from a child. Holliday v. Leigh, et al, 2:17-cv-113, E.D.KY June 15, 2020.

Nicki Holliday 2020

CHFS social worker Alecia Leigh went to the day care and attempt to interview the child. When the child’s mother, Maureen Holliday came to pick up her daughter, Leigh refused to let Mother have the child and insisted on a separate interview of the Mother. Mother asked to have someone present and Leigh refused. Leigh then told the Mother that she was under a Prevention Plan and Mother was limited to supervised contact only with the child.

The investigation lagged. However, the interviews that were conducted exonerated the Mother. In spite of compelling evidence that the child was not in harm’s way in Mother’s care, the plan remained in place. From October 2016 to January 2017, Mother remained under the plan and had limited contact with her daughter. Finally, the case was dismissed.

The Court denied summary judgment on substantive and procedural due process finding that the prevention plan violated Mother’s parenting rights and that it was secured under duress. Mother was not advised of her rights and was never provided a hearing on the prevention plan. The Court also denied summary judgment on the procedural due process right of Mother which requires notice and the opportunity to be heard. The Court denied the defense of qualified immunity, in part, in reliance on Schulkers v. Kammer, 367 F. Supp. 3d 626 (E.D.Ky 2019)

The Court also found that Leigh’s supervisor was liable because the plaintiff need only show that a supervisory official implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the offending subordinate. Coley v. Lucas Cty., 799 F. 3d 530, 543 (6th Cir. 2015).

The Court also refused to dismiss the state claim of intentional infliction of emotional distress.

However, the District Court did grant summary judgment on the prayer for punitive damages in a civil rights case. The court stated that the Plaintiff must show that the Defendant was motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Citing Smith v. Wade, 461 U.S. 30, 56 (1983).

The court stated that Sec. 1983 presupposes that damages that compensate for actual harm ordinarily suffice to deter constitutional violations, therefore punitive damages are only permitted in particularly egregious situations. The conduct must be so egregious that it cannot be remedied by compensatory damages.

The Holliday decision is good for families and shows a small step towards constitutional fairness for families while dealing with the state-run child welfare agencies.