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

Start at Lasche v. N.J.Yesterday’s decision was made by the Third Circuit in an opinion of Judge Peter Phipps joined by Robert Cowen and Thomas Hardiman.

Their foster child was removed by two foster parents who were religiously opposed to homosexual conduct and same-sex married. They also had their foster license suspended. The foster parents claim that a New Jersey state agency took those actions based on their religious beliefs….

Michael Lasche and Jennifer Lasche in New Jersey are a Christian couple. They served their children as foster parents for more than ten years.

The Lasches were contacted by the Monmouth County Office of the New Jersey Division of Child Placement and Permanency in September 2017 to foster two children. They were both sisters. One was 13 years old (Foster Child 1); the other was ten years (Foster Child 2). The children also had three older siblings, who were put in foster care. The Lasches accepted the girls after speaking to a DCPP caseworker Kyle Higgins and Katie Epperly their supervisor.

In November 2017, their biological parents were no longer able to retain parental rights. The Lasches learned from Higgins in October and December that Higgins was considering adopting the girls.

Higgins revealed to the Lasches, three weeks after telling them they could adopt the children that she had spoken with a couple from Illinois about adopting their five siblings. When the Lasches asked Higgins about her prospective adoptive family they both replied that they didn’t know. The Lasches later learned from the foster parents that Higgins and Epperly were “two wealthy gay men” with lots of support family.

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. For reasons that are confidential, DCPP and the Lasches agreed to remove Foster Child 2 from their home four months later.

The potential adoption by an Illinois couple of all five siblings continued to be under consideration during that period and for two more months after. Jennifer Lasche said that Foster Child 1 could be allowed to visit her siblings in order to determine if she wants to adopt them. Jennifer Lasche was also updated on the adoption process at that meeting. Higgins stated that DCPP will present two options for placement at a upcoming court hearing. DCPP wouldn’t take any position on either of these. First, the children could be adopted by current foster parents. Second was that the Illinois couple adopts all five of them.

On June 4, 2018, the hearing was successful. Illinois couple did not want to adopt any of their five children. Judge also stated that children required psychiatric evaluations in the future.

The inquiries regarding the Lasches’ religion intensified after that hearing. Foster Child 1, visibly distraught after the therapy sessions, came back from the session that following month. The therapist had repeatedly mentioned religion to Foster Child 1. She also told Foster Child 1 she was not under any pressure to adhere to the Lasches religious beliefs. Jennifer Lasche approached the therapist and was told by the therapist that Higgins and she had discussed similar-sex relationships in the past. Higgins later picked Foster Child 1 up from her sibling visit. She and another unnamed woman stopped in Dunkin Donuts, where Higgins questioned Foster Child 1 regarding her religion beliefs. Foster Child 1, despite Higgins telling her that she couldn’t “meet all of her needs”, did not stop Higgins from asking about Foster Child 1.

Jennifer Lasche called Higgins at the same time to talk to him about Foster Child 1. Jennifer Lasche found this surprising because she thought that, since the Illinois couple had decided to adopt the children, adoption was not an option.

DCPP set up a meeting to discuss Foster Child 1’s best interests shortly thereafter. Epperly shared her concerns that Foster Child 1’s and Foster Child 2 were influenced by the Lasches, including their opinions on homosexual relationships. On June 29, 2018, the Monmouth County DCPP Office hosted a meeting that included the Lasches and their attorney. There were also four DCPP employees (Kyle Higgins and Katie Epperly), Janelle Clark, as well as one or two other DCPP representatives and an attorney representing the State of New Jersey.

At the heart of the meeting was the Lasches’ religious belief about homosexual conduct being sinful. DCPP workers expressed concerns about Lasches’ beliefs that homosexual conduct is a sin. They agreed with the Lasches that their religious beliefs are a problem. They sought assurance from Lasches that Foster Child 1 would be accepted if she decided to openly explore her sexuality. DCPP representatives stated that Foster Child 1 will need therapy in order to overcome her conviction that homosexual behavior is sinful.

The Lasches were again surprised to receive news just a few more days later. DCPP representatives attended family court to remove Foster Child 1 from their custody. They failed to provide Lasches with notice as required by law. 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. Foster Child 1 was then removed from the Lasches’ home and placed in Foster Child 2.

They learned another thing three months later that the Lasches should have known sooner. 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. It first ruled that foster parents who shared religious beliefs with foster children were not protected by the Constitution. 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….

With the Free Exercise Clause the First Amendment ensures that you have the freedom of belief and will be able to exercise your rights. [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.

The Lasches are constitutionally protected in their belief that they oppose same-sex marriage. This is true: The Free Exercise Clause gives the absolute right to have religious beliefs.

Also, the Lasches claim that they were retaliated against for having shared their views about Foster Child’s same-sex marriage. Supreme Court voids governmental regulation that does not apply to all faith-inspired action. Fulton v. City of Phila.(2021). (holding that the city’s anti-discrimination policies were not applicable generally because they allowed for individual, discretionary exceptions); See also Masterpiece Cakeshop, Ltd., Civ. Rts. Comm’n(2018). (Explaining how state actions based on “hostility towards a religion” or “religious viewpoint” are against the State’s Free Exercise Clause obligation to “proceed neutrally toward religion); Church of the Lukumi Babalu Aye, Inc. against City of Hialeah (1993). The individual-capacity defendants don’t identify any neutral or generally applicable basis to their treatment of Lasches. This is not apparent in the pleadings. Because Foster Child 1 had her biological father terminate Foster Child 1 rights and Foster Child 1’s mother gave up her parental rights, Lasches actions don’t conflict with those rights. The Lasches claim that Foster Child 1 was their foster child and they shared their religious beliefs on the subject. Look! 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”)….

Also, the Lasches claim that Foster Child 1 was taken from them by individual-capacity defendants and their foster license suspended. Both actions are likely to deter individuals “of ordinary firmness” who wish to exercise their right of free speech. [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…. However, if the court is “provided with all the facts”, an order from the court intervening in Foster Child 1’s removal may disrupt a causal chain. Here, however, they claim only that the Lasches did not get the required notice about the court hearing. They don’t claim the court didn’t have all the facts. They also don’t claim that any of the defendants misled or obstructed the court regarding the facts. The family court order does not interrupt the chain of causality regarding Foster Child’s removal. Therefore, the District Court didn’t err in dismissing Lasches First Amendment retaliation claims related to Foster Child removal 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.} …

In addition to allowing plaintiffs to continue with their claim that defendants violated New Jersey’s law against religious discrimination, the court observed that New Jersey courts had broadly interpreted the law to encompass programs and not just physical spaces.