Blais et al v. Hunter, No. 2:2020cv00187 - Document 56 (E.D. Wash. 2020)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART 31 PLAINTIFFS' MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION. This case is REMANDED to the Department for further proceedings. Signed by Judge Salvador Mendoza, Jr. (LTR, Case Administrator)
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Blais et al v. Hunter Doc. 56 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1165 Page 1 of 32 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Oct 08, 2020 1 SEAN F. MCAVOY, CLERK 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 5 6 7 JAMES BLAIS and GAIL BLAIS, Plaintiffs, v. 9 ROSS HUNTER, in his official capacity of Secretary of Washington State Department of Children, Youth and Families, 10 Defendant. 8 No. 2:20-cv-00187-SMJ ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION 11 12 James and Gail Blais hope to foster, and eventually adopt, their great- 13 granddaughter, H.V. After H.V. was born, concerns about her welfare arose. The 14 Idaho Department of Health and Welfare (“IDHW”) ultimately removed H.V. from 15 her birth parents’ care and later reached out to the Blaises about possibly fostering 16 or adopting her. The Blaises expressed an interest in caring for H.V., so IDHW 17 asked the Washington Department of Children, Youth, and Families 18 (“Department”) to evaluate the Blaises for a foster care license. 19 To address the needs of foster children who are developing, discovering, or 20 identifying themselves as lesbian, gay, bisexual, transgender and questioning ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 1 Dockets.Justia.com Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1166 Page 2 of 32 1 (LGBTQ+),1 the Department has promulgated several regulations and policies for 2 Department staff and foster parents providing foster care services. The Blaises are 3 devout Seventh-day Adventists. Following a home study, the Department denied 4 the Blaises’ foster care license application. Their answers to a series of 5 hypotheticals involving a foster child who might in the future develop or identify 6 as LGBTQ+ did not conform to Department regulations and policy. 7 The Blaises sued under 42 U.S.C. § 1983, seeking declaratory and injunctive 8 relief. They allege Department regulations and policies on LGBTQ+ youth work to 9 preclude people with certain sincerely held religious beliefs from qualifying for a 10 foster care license. They maintain that these regulations and policies in operation 11 violate the First and Fourteenth Amendments of the United States Constitution. The 12 Blaises thus moved for a preliminary and permanent injunction. 13 After reviewing the briefing, and conducting a hearing on the matter, the 14 Court issued an oral ruling granting in part and denying in part the Blaises’ motion 15 for a preliminary injunction. Because the Blaises declined to address whether a 16 permanent injunction should issue, the Court did not reach that question. This 17 written order memorializes the Court’s oral ruling. 18 19 20 The Court recognizes that the letter Q in this abbreviation can stand for “questioning,” or “queer,” or sometimes both. That said, the Department policy and guidance at issue uses Q to denote “questioning,” and the Court refers to it that way here simply to maintain consistency. 1 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 2 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1167 Page 3 of 32 BACKGROUND 1 2 In September 2019, Gail Blais’s granddaughter gave birth to H.V. ECF No. 3 30 at 6. Soon after, worries about her welfare arose. Id. Hospital staff contacted 4 IDHW. Id. IDHW ultimately removed H.V. from her birth parents and placed her 5 in foster care. Id. In December, IDHW contacted the Blaises about H.V., who 6 expressed an interest in fostering and possibly adopting their great-granddaughter. 7 Id.; ECF No. 32 at 3. 8 In early January, the Blaises applied for a foster care license; IDHW also 9 asked the Department to evaluate whether the Blaises would be fit foster parents for 10 H.V. ECF No. 25 at 12. The Department assigned their application to Patrick Sager, 11 a foster care licensor. Id. About a week later, Sager went to the Blaises’ home to 12 conduct the required interviews and home study. Id. 13 The Department’s Licensing Division completes homes studies for all 14 caregivers who foster children in their custody. ECF No. 20-1 at 3. The Department 15 encourages licensors to ask questions available in the Family Home Study Guide 16 and related Family Home Study Questions and Prompts. ECF No. 25 at 7; see also 17 ECF Nos. 20-1, 20-2. Sager asked the Blaises many questions about things 18 involving the Blaises’ family history, past spouses, experience with children, 19 communication styles, dietary habits, medical and mental health issues, 20 employment history, and corporal punishment. ECF No. 32 at 4; ECF No. 25 at 7. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 3 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1168 Page 4 of 32 1 Though only an infant, Sager also asked hypothetical questions about H.V.’s 2 possible future sexual orientation and gender identity. ECF No. 32 at 4; see also 3 ECF No. 20-2 at 4. These questions included, for example: 4 5 6 7 8 9 “How would we react if H.V. was a lesbian?” “Would we allow H.V. to have a girl spend the night at our home as H.V.’s romantic partner?” “If at 15 years old, H.V. wanted to undergo hormone therapy to change her sexual appearance, would we support that decision and transport her for those treatments?” “If as a teenager, H.V. wanted to dress like a boy and be called by a boy’s name, would we accept her decision and allow her to act in that manner?” ECF No. 32 at 4; see also ECF No. 20-2 at 4; ECF No. 25 at 10. 10 The Blaises informed Sager that their Christian faith obliges them to love and 11 support all people. ECF No. 32 at 4–5. They conveyed that this tenet especially 12 applies to children who may feel isolated or uncomfortable. Id. As for the specific 13 questions on possible hormone therapy, they “responded that although we could not 14 support such treatments based on our sincerely-held religious convictions, we 15 absolutely would be loving and supportive of H.V.” Id. at 5. They “also indicated 16 that, in the unlikely event H.V. may develop gender dysphoria (or any other medical 17 condition) as a teenager, we would provide her with loving, medically and 18 therapeutically appropriate care that is consistent with both then-accepted medical 19 principles and our beliefs as Seventh-day Adventists and Christians.” Id. 20 Their answers alarmed Sager. ECF No. 25 at 12. He advised them that the ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 4 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1169 Page 5 of 32 1 Department would likely deny their application because their responses conflicted 2 with the Department’s policy to support LGBTQ+ children. ECF No. 32 at 4–5. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 For example, they were not willing (a) to support hormone therapy for transitioning, even if it was medically necessary or recommended, or counseling that was not consistent with their religious beliefs; (b) to support boys wearing girls’ clothes or vice versa; (c) to allow H.V. or other foster children to date in the future; or (d) to call a foster child by their preferred name if it was different from their given name. ECF No. 25 at 12–13. After apprising his supervisor, they decided to send the Blaises educational materials and statistics about LGBTQ+ children. Id. at 13, 14. The email invited them to review the materials, so that they could “make a more informed decision about supporting LGBTQ+ youth in foster care.” ECF No. 32 at 6. Meanwhile, the Department also mailed the Blaises’ adult children questionnaires to get more information about their parenting. Id. One question probed, “If you needed someone to care for your child, either short or long-term, would you feel comfortable using the applicant(s)?” James Blais’s son responded, Short term, yes. I would be hesitant for something long term as I have different religious views than my father and I wouldn’t necessarily want that environment for my child for the long term. I raised my daughter that no religion is perfect and not having religion in your life is fine as well. It’s ultimately an individual’s choice and my father has stringent religious views concerning same-sex marriage, inter-racial marriages and relationships in general. Id. at 13–14. Sager later declared that this provided him with independent proof that “Blaises’ [lacked the] ability to adequately support all foster children.” Id. at 14. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 5 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1170 Page 6 of 32 1 After reading the materials provided, the Blaises reiterated their sincerely 2 held religious beliefs and repeated their pledge to offer a loving and supportive 3 home for any foster child in their care. ECF No. 32 at 6. Still, they held steadfast to 4 their conviction that they would not support hormone treatment for a child wishing 5 to transition. ECF No. 32 at 6. Sager then posed new but similar questions to the 6 Blaises: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 “If H.V. had a lesbian girlfriend, would we be willing to have her visit our home and possibly travel with us?” “Would we find it acceptable if H.V. dressed like a boy?” “Would we find it acceptable if H.V. wanted to be called by a boy’s name?” “If at age 14, a doctor ordered H.V. to undergo hormone therapy to change her sexual appearance, would we comply with that order?” “If at age 14, H.V. said that if we did not agree with her having hormone therapy she would leave our home and run away, how would we respond?” ECF No. 32 at 7. Afterward, Sager again suggested that they abandon their request to become H.V.’s foster parents because their answers still conflicted with Department policy—the Blaises refused. Id. Several days later, Sager asked the Blaises to meet with him yet again, this time via videoconference with the Department’s LGBTQ+ lead, Carissa Stone. Id.; ECF No. 25 at 15. They agreed. Id. During that call, they “discussed Policy 6900, which is [the Department’s] policy on how [Department] staff will make sure children who identify as LGBTQ+ have safe and affirming care.” ECF No. 21 at 5. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 6 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1171 Page 7 of 32 1 Because the Blaises remained faithful to their beliefs, Sager and Stone advised them 2 that they had reached an “impasse.” Id.; ECF No. 21 at 6. 3 The Blaises sued for declaratory and injunctive relief under 42 U.S.C. § 1983, 4 alleging the Department violated the First and Fourteenth Amendments of the 5 United States Constitution. ECF No. 1. They then moved for a preliminary and 6 permanent injunction. ECF No. 3. The Department moved to dismiss the action 7 because the Blaises failed to exhaust their administrative remedies, among other 8 reasons. ECF No. 17. 9 10 Soon after, the Department denied their application for a foster care license in a letter-ruling. ECF No. 25-4. The decision noted, 13 Despite the Department’s multiple efforts to educate the Blaise’s [sic] about the risks to the safety of foster children who identify as LGBTQ+ presented by family rejection and a lack of family support, they have been unwilling to agree to provide safe and affirming support to a child who is or may identify as LGBTQ+. 14 Id. at 7. The decision also notified the Blaises about how to file an administrative 15 appeal. Id. at 9. 11 12 16 The Blaises declined to administratively appeal, instead opting to amend their 17 complaint in federal court. ECF No. 30. That amendment rendered the 18 Department’s motion to dismiss moot. ECF No. 34. The Blaises also amended their 19 motion for a preliminary and permanent injunction. ECF No. 31. 20 The Blaises seek declaratory and injunctive relief, alleging that Department ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 7 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1172 Page 8 of 32 1 regulations and policies violate the First and Fourteenth Amendments of the United 2 States Constitution as-applied by (1) encouraging individualized assessments, (2) 3 targeting the religious for special disabilities, (3) operating in a non-neutral way, 4 (4) compelling speech, (5) flouting substantive due process, (6) violating hybrid 5 rights under the First Amendment, and (7) imposing unconstitutional conditions. 6 ECF No. 30 at 24–34. 7 The Blaises ask the Court to declare certain Department regulations and 8 policies unconstitutional. ECF No. 30 at 34. They also request a mandatory 9 injunction forcing the Department to grant the Blaises’ foster care license. Id. 10 Finally, they seek to enjoin the Department from enforcing or threatening to enforce 11 Policy 6900 or any other policy, regulation, or practice that conflicts with a foster 12 care license applicant’s sincerely held religious beliefs about sexual orientation or 13 gender identity. Id. at 34–35. 14 Though entitled “Amended Motion for Preliminary and Permanent 15 Injunction,” the Blaises only offer legal argument on whether a preliminary 16 injunction should issue. See generally ECF No. 31. And the sole relief requested in 17 this motion is an “injunction requiring the Department to grant the Blaises’ foster 18 parent application.” Id. at 20. For these reasons, the Court addresses only whether 19 the Blaises satisfied the standard for a preliminary injunction.2 20 2 The Department also highlights this defect and thus addresses only whether the ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 8 Case 2:20-cv-00187-SMJ 1 ECF No. 56 filed 10/08/20 PageID.1173 Page 9 of 32 DISCUSSION 2 “A plaintiff seeking a preliminary injunction must establish [1] that he is 3 likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the 4 absence of preliminary relief, [3] that the balance of equities tips in his favor, and 5 [4] that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, 6 Inc., 555 U.S. 7, 20 (2008). “[P]laintiffs must establish that irreparable harm is 7 likely, not just possible, in order to obtain a preliminary injunction.” All. for the 8 Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011) (emphasis in original). 9 Even so, the Ninth Circuit employs a “sliding scale approach.” All. for the 10 Wild Rockies, 632 F.3d at 1131. Under that approach, “the elements of the 11 preliminary injunction test are balanced, so that a stronger showing of one element 12 may offset a weaker showing of another.” Id. Thus, “a preliminary injunction could 13 issue where the likelihood of success is such that ‘serious questions going to the 14 merits were raised and the balance of hardships tips sharply in [plaintiff’s] favor.’” 15 Id. (alterations in original) (quoting Clear Channel Outdoor, Inc. v. City of Los 16 Angeles, 340 F.3d 810, 813 (9th Cir. 2003)). “The ‘serious questions’ approach 17 survives Winter when applied as part of the four-element Winter test.” Id. at 1131– 18 32. Still, “[w]hen the government is a party, the[] last two factors merge.” Drakes 19 20 Court should issue a preliminary injunction. ECF No. 43 at 10. At oral argument, the Blaises likewise confirmed they were seeking only a preliminary injunction. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 9 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1174 Page 10 of 32 1 Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. 2 Holder, 556 U.S. 418, 435 (2009)). 3 A. Likelihood of Success on the Merits 4 1. Free Exercise Challenge 5 The free exercise clause provides that “Congress shall make no law . . . 6 prohibiting the free exercise [of religion].” U.S. Const., amend. I.; see also Cantwell 7 v. State of Conn., 310 U.S. 296, 303 (1940) (holding that the First Amendment’s 8 free exercise clause applies to the states through the Fourteenth Amendment). “The 9 free exercise of religion means, first and foremost, the right to believe and profess 10 whatever religious doctrine one desires.” Emp. Div., Dep’t of Hum. Res. of Or. v. 11 Smith, 494 U.S. 872, 877 (1990). Thus, “[t]he government may not compel 12 affirmation of religious belief, punish the expression of religious doctrines it 13 believes to be false, impose special disabilities on the basis of religious views or 14 religious status, or lend its power to one or the other side in controversies over 15 religious authority or dogma.” Id. (citations omitted). 16 But “[n]ot all burdens on religion are unconstitutional,” and “[t]he state may 17 justify a limitation on religious liberty by showing that it is essential to accomplish 18 an overriding governmental interest.” United States v. Lee, 455 U.S. 252, 257 19 (1982). The right to free exercise does not relieve a person from complying with a 20 valid, neutral law of general applicability. Smith, 494 U.S. at 879. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 10 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1175 Page 11 of 32 1 Courts apply two levels of scrutiny to laws that allegedly burden religion 2 under the free exercise clause. On the one hand, courts apply “the most rigorous of 3 scrutiny” to laws burdening religion that are neither neutral nor of general 4 application. Lukumi, 508 U.S. at 546. Such laws will be found unconstitutional 5 unless the government can show the law serves “a compelling interest and is 6 narrowly tailored to advance that interest.” Lukumi, 508 U.S. at 533. On the other 7 hand, courts apply rational basis review to neutral laws of general applicability. 8 Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075–76 (9th Cir. 2015). “Under 9 rational basis review, we must uphold the rules if they are rationally related to a 10 legitimate governmental purpose.” Id. at 1084. i. 11 Neutrality 12 The Blaises argue Department regulations and policies operate in a non- 13 neutral manner thus suppressing religious belief. See generally ECF No. 31 at 8– 14 14; ECF No. 46 at 3–7. The Department counters its regulations and policies operate 15 neutrally because they apply equally to all foster care license applicants. ECF No. 16 43 at 12. 17 A law is not neutral if “the object of [the] law is to infringe upon or restrict 18 practices because of their religious motivation.” Lukumi, 508 U.S. at 533 (emphasis 19 added). Plaintiffs may show “that the object or purpose of a law is the suppression 20 of religion or religious conduct” in several ways. Id. But courts will first examine ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 11 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1176 Page 12 of 32 1 the law’s text to determine whether it is discriminatory on its face. Id. “A law lacks 2 facial neutrality if it refers to a religious practice without a secular meaning 3 discernable from the language or context.” Id. Besides the text, how the law works 4 in practice supplies “strong evidence of its object.” Id. at 535. 5 In denying the Blaises license application, the Department relied on Wash. 6 Rev. Code §§ 74.15.010, 74.15.030, 74.15.130, 49.60.030; Wash. Admin. Code §§ 7 110-148-1365, 110-148-1520, 110-148-1625; and Department Policies 4520,3 8 5100, 6900. ECF 25-4 at 5–8. 9 Wash. Rev. Code § 74.15.010 provides a declaration of purpose. Under 10 Washington law, legislative policy declarations have no operative effect. See, e.g., 11 Judd v. Am. Tel. & Tel. Co., 95 P.3d 337, 341 (Wash. 2004) (holding 12 policy statements do not give rise to enforceable rights and duties). So, while this 13 policy declaration may shed light on the aims of the chapter’s operative laws, it 14 cannot provide a basis for the Department to deny the Blaises’ foster care license 15 application. Wash. Rev. Code § 74.15.030 gives the secretary the power and duty to adopt 16 17 The Court notes that Policy 4520 addresses HIV/AIDS Support Services and does not contain the language referenced in the Department’s letter ruling. Compare ECF 25-4 at 5 n.1 with Policy 4520, HIV/AIDS Support Services, Washington State Department of Children, Youth & Families (last visited October 2, 2020), https://www.dcyf.wa.gov/4500-specific-services/4520-hivaids-support-services. The Court cannot locate the proper policy the Department intended to reference, so it cannot address it here. 3 18 19 20 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 12 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1177 Page 13 of 32 1 and publish minimum requirements for licensing, investigate any person’s 2 character, suitability, and competence to provide foster care, and issue, revoke, or 3 deny licenses, among other things. 4 Wash. Rev. Code § 74.15.130 allows the Department to deny a license if an 5 applicant has failed or refused to comply with the provisions of chapter 74.15 RCW 6 or the requirements promulgated under the provisions of chapter 74.15 RCW, 7 among other things. 8 Wash. Rev. Code § 49.60.030 declares freedom from discrimination to be a 9 civil right and prohibits discrimination in the workplace, public accommodations, 10 real estate transactions, credit transactions, insurance transaction, and the like. 11 Wash. Admin. Code § 110-148-1365 outlines the “personal” requirements 12 for foster parents. Among other things, potential foster parents must show that they 13 can “furnish children with a nurturing, respectful, and supportive environment.” Id. 14 Similarly, Wash. Admin. Code § 110-148-1520 outlines the services the 15 Department expects potential foster parents to provide to children in their care. For 16 example, foster parents “must follow all state and federal laws regarding 17 nondiscrimination while providing services to children in [their] care . . . [and] must 18 treat foster children in [their] care with dignity and respect regardless of race, 19 ethnicity, culture, sexual orientation and gender identity.” Wash. Admin. Code § 20 110-148-1520(6). Foster parents must also “connect a child with resources that ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 13 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1178 Page 14 of 32 1 meets a child’s needs regarding race, religion, culture, sexual orientation and gender 2 identity.” Wash. Admin. Code § 110-148-1520(7). 3 Policy 5100 provides: “Children’s Administration (CA) is prohibited from 4 denying any person the opportunity to become a foster or adoptive parent, on the 5 following basis: race, creed, color, national origin, gender, honorably discharged 6 veteran or military status, sexual orientation, or the presence of any sensory, mental, 7 or physical disability or the use of a trained dog guide or service animal.” Connie 8 Lambert-Eckel, Applying as a Foster Parent or Unlicensed Caregiver, Washington 9 State Department of Children, Youth & Families (July 1, 2018), 10 https://www.dcyf.wa.gov/5000-case-support/5100-applying-foster-parent-or- 11 unlicensed-caregiver. 12 Policy 6900 provides: “A child or youth who identifies as LGBTQ+ will not 13 be subjected to discrimination or harassment on the basis of actual perceived sex, 14 sexual orientation, gender identity or gender expression.” Connie Lambert-Eckel, 15 Supporting LGBTQ+ Identified Children and Youth, Washington State Department 16 of Children, Youth & Families (July 1, 2018), https://www.dcyf.wa.gov/6000- 17 operations/6900-supporting-lgbtq-identified-children-and-youth. 18 The purpose of the policy is 19 [t]o address the specific needs of children and youth under the age of 21 receiving Children’s Administration (CA) services who are developing, discovering, or identifying themselves as lesbian, gay, bisexual, transgender and questioning (LGBTQ+). This policy will 20 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 14 Case 2:20-cv-00187-SMJ filed 10/08/20 PageID.1179 Page 15 of 32 provide guidance to assist CA staff in identifying and referring LGBTQ+ children and youth to appropriate and culturally responsive services. 1 2 3 ECF No. 56 Id. 4 Because the statutes, regulations and policies at issue “make no reference to 5 any religious practice, conduct, belief, or motivation, they are facially neutral.”4 See 6 Stormans, 794 F.3d at 1076. “A regulation neutral on its face may, in its application, 7 nonetheless offend the constitutional requirement for governmental neutrality if it 8 unduly burdens the free exercise of religion.” Wisconsin v. Yoder, 406 U.S. 205, 9 220 (1972). Because the free exercise clause “‘forbids subtle departures from 10 neutrality,’” Lukumi, 508 U.S. at 533 (quoting Gillette v. United States, 401 U.S. 11 437, 452 (1971)), the tougher question here involves whether these regulations and 12 policies operate to covertly suppress certain religious beliefs. See id. Courts must 13 carefully review how the law works in practice to thwart “religious gerrymanders.” 14 Id. 15 Lukumi identified three factors courts should focus on when determining 16 whether a law works as a religious gerrymander, including whether: (1) the law 17 18 19 20 Some Department guidance documents explicitly reference religion. ECF Nos. 201, 20-2. The Family Home Study Questions and Prompts offers a series of questions licensors may ask about an applicant’s religious and spiritual affiliations and practices. ECF No. 20-2 at 7. That guidance document is also the source of questions prompting inquiry into an applicant’s stances on support of LGBTQ+ youth. ECF No. 20-2. 4 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 15 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1180 Page 16 of 32 1 burdens religious objectors yet almost no others, (2) the government’s interpretation 2 of the law favors secular conduct, and (3) the law bars “more religious conduct than 3 is necessary to achieve [its] stated ends.” See id. at 536–538. 4 Chapter’s 110–148 of the Washington Administrative Code govern the 5 licensing requirements for child foster homes. The regulations here do not 6 reasonably accommodate religious belief or conduct for foster care providers. See, 7 e.g., Wash. Admin. Code § 110-148-1365, 1520. Still, these regulations do apply 8 equally to all prospective foster care applicants. See id. For example, by requiring 9 a foster parent to “connect a child with resources that meets a child’s needs 10 regarding race, religion, culture, sexual orientation and gender identity,” Wash. 11 Admin. Code § 110-148-1520(7), the Department ostensibly did not intend to 12 infringe or restrict any particular religious beliefs or conduct because of their 13 religious motivations. See Lukumi, 508 U.S. at 533. Rather, the Department 14 intended that regulation, and others like it, to protect the best interests of children 15 in foster care. There is also no evidence the Department promulgated these 16 regulations with discriminatory intent. 17 Even so, in defining the scope of Policy 6900, the Department states: “This 18 policy applies to CA [Children’s Administration] staff.” Lambert-Eckel, supra. Yet 19 Pamela McKeown, senior foster care administrator at the Department, declares: 20 Policy 6900 applies to DCYF Licensing Division staff (including those who conduct home studies for foster care licensing applications and ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 16 Case 2:20-cv-00187-SMJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ECF No. 56 filed 10/08/20 PageID.1181 Page 17 of 32 ICPC requests), and provides that a child or youth who identifies as LGBTQ+ will not be subjected to discrimination or harassment on the basis of actual or perceived sex, sexual orientation, gender identity, or gender expression. ECF No. 23 at 10. The Department relied on Policy 6900 in its ruling denying the Blaises’ foster care license application. ECF 25-4 at 5 n.1. It appears in practice the Department applies Policy 6900 to prospective foster parents. See id. By its terms, though, Policy 6900 applies only to Department staff, not foster care applicants. See Lambert-Eckel, supra. And it applies only to a child or youth who identifies as LGBTQ+. See id. The policy does not authorize the Department to impose its staff mandates on potential foster parents. See id. Nor does it apply to children who are not within the Department’s custody and care or children who hypothetically might identify as LGBTQ+ in the future. See id. Nor does it impose any separate foster parent licensing requirement under which applicants must comply. See id. Closer inspection of the regulations and policies at issue reveals that, in practice, they work to burden potential caregivers with sincere religious beliefs yet almost no others. See Lukumi, 508 U.S. at 536. For the most part, the only foster care applicants who might object to supporting certain issues LGBTQ+ children might face will likely do so on religious grounds. The Department’s interpretation of its regulations and policies also favor certain secular viewpoints over certain religious viewpoints. See Lukumi, 508 U.S. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 17 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1182 Page 18 of 32 1 at 537. For example, the Department favors religious and non-religious applicants 2 who have neutral or pro-LGBTQ+ views over religious and non-religious applicants 3 who have non-neutral or anti-LGBTQ+ views. Several open-ended regulations and 4 policies give the Department broad discretion—case-by-case—to prohibit people 5 from participating in foster care because their sincere religious beliefs conflict with 6 Department LGBTQ+ policy. Department guidance gives licensors “flexibility to 7 ask different or additional questions in order to make the home study process more 8 accessible as well as to ensure that any areas of concern are fully developed and can 9 be thoroughly assessed.” ECF No. 20-2 at 1; ECF No. 25 at 11. While these 10 regulations and policies’ secular purpose assuredly have the best interests of 11 children at heart, in practice, these laws work to preclude people with certain 12 religious beliefs from participating in foster care. 13 Finally, Department policy operates to bar more religious conduct than 14 necessary to achieve its stated ends. See Lukumi, 508 U.S. at 538. The Department’s 15 stated ends include furnishing foster children with a nurturing, respectful, and 16 supportive environment; treating foster children with dignity and respect regardless 17 of sexual orientation and gender identity; and connecting foster children with 18 resources that meet their needs. Wash. Admin. Code §§ 110-148-1365, 1520(6), 19 (7). The regulations and policies at issue are overbroad as applied to the Blaises 20 given many available alternatives. As the Blaises suggest, for instance, the ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 18 Case 2:20-cv-00187-SMJ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ECF No. 56 filed 10/08/20 PageID.1183 Page 19 of 32 Department could address the issue at a later, more appropriate age. It could rely on caseworkers to carry out medical decisions that the Blaises cannot support for religious reasons. Or it could change placements in the rare situation where the Blaises might be unable, consistent with the religious beliefs, to carry out the Department’s decisions with respect to a particular child. ECF No. 31 at 12. Here, approval of the Blaises’ application hinged on their stance on LGBTQ+ rights and whether they intended to remain faithful to their religion. The Blaises believe “Scripture provides guidance to those who experience incongruity between their biological sex and gender identity.” ECF No. 31 at 4. The Department denied their application because this tenet of the Blaises’ faith flouts Department regulations and policy, as interpreted by Department staff. The Department thus “punish[ed] the expression of religious doctrines it believes to be false.” Smith, 494 U.S. at 877; see also Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988) (the free exercise clause protects against laws that “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens”); United States v. Ballard, 322 U.S. 78, 86–88 (1944). But the Blaises’ “‘religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.’” See Lukumi, 508 U.S. at 531 (quoting Thomas v. Rev. Bd. of Ind. Emp. Sec. Div., 450 U.S. 707, 714 (1981)). Yet, to be eligible for a foster care license, the Department ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 19 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1184 Page 20 of 32 1 required the Blaises to divorce themselves from their religious beliefs. See Espinoza 2 v. Montana Dep’t of Revenue, 140 S. Ct. 2246, 2255–56 (2020) (determining 3 Montana’s no-aid provision bars religious schools and religious parents from public 4 benefits just because of the religious character of the schools). “Placing such a 5 condition on benefits or privileges ‘inevitably deters or discourages the exercise of 6 First Amendment rights.’” Id. 7 The Department argues the purpose of the foster family home licensing 8 program is to “safeguard the health, safety, and well-being of children, . . . which is 9 paramount over the right of any person to provide care.” Wash. Rev. Code § 10 74.15.010(1). And “no person or agency has a right to be licensed under this chapter 11 to provide care for children.” 1995 Wash. Sess. Laws, 1271–80. True enough, but 12 the Department undeniably grants a privilege and benefit to the foster parents who 13 receive a license. The Department denied the Blaises the privilege and benefit of 14 providing foster care because of their sincerely held religious beliefs. 15 In its ruling denying the Blaises application, the Department also invoked 16 Wash. Rev. Code § 49.60.030 and Policy 5100 as a basis for denying the Blaises 17 application. ECF No. 25-4 at 5–6. Curious, as the Blaises had not actually 18 discriminated against any child in their care, but instead simply answered 19 hypothetical questions about hypothetical children. That aside, the Department 20 ignored how the law and policy actually work to protect the Blaises. Wash. Rev. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 20 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1185 Page 21 of 32 1 Code § 49.60.030 declares the right to be free from discrimination because of creed. 2 Policy 5100 likewise prohibits the Department from denying any person the 3 opportunity to become a foster or adoptive parent based on their creed. See Lambert- 4 Eckel, supra. Yet the Department ostensibly discriminated against the Blaises based 5 on their creed. It denied the Blaises’ application because their system of religious 6 beliefs, as Seventh Day Adventists, do not align with Policy 6900 and other 7 guidance. The Court recognizes the inherent tension between these laws and 8 policies and notes that the Department has not issued any guidance for licensors 9 attempting to navigate situations where there is a conflict between a foster care 10 applicant’s creed or religious beliefs and the Department’s policy of supporting 11 LGBTQ+ youth. 12 Department regulations and policies appear neutral but in practice 13 gerrymander to create unequal effect. As applied to the Blaises and others similarly 14 situated, the regulations and policies disproportionately exclude persons who 15 observe certain religious faiths from qualifying as foster parents based solely on 16 speculative future conduct. In operation, Department regulations and policies 17 eliminate a not insignificant cross-section of otherwise qualified persons from 18 serving as potential caregivers based on their faith’s stance on sexual orientation 19 and gender identity and whether their religion supports certain issues LGBTQ+ 20 youth might face. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 21 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1186 Page 22 of 32 1 The Court concludes Department regulations and policy operate as a religious 2 gerrymander and are thus not neutral as applied to the Blaises and others similarly 3 situated. ii. 4 General Applicability 5 Though interrelated, and the failure to satisfy the neutrality requirement 6 likely shows a law does not satisfy the general applicability requirement, courts 7 must analyze each principle separately. Stormans, 794 F.3d at 1076. A law 8 generally applies if it does not selectively “impose burdens only on conduct 9 motivated by religious belief.” Lukumi, 508 U.S. at 543. The Blaises argue 10 Department regulations and policies create a discretionary system of individualized 11 assessments and target the religious for special disabilities based on their religious 12 views. 13 a. Individualized Assessments 14 Sherbert v. Verner, 374 U.S. 398 (1963), and its progeny Thomas v. Rev. Bd. 15 of Ind. Emp. Sec. Div., 450 U.S. 707 (1981), and Hobbie v. Unemp. Appeals 16 Comm’n of Fla., 480 U.S. 136 (1987), held incidental burdens on the free exercise 17 of religion must be narrowly tailored to achieve a compelling state interest. Smith 18 ostensibly restricted the scope of this line of cases by delimiting the use of strict 19 scrutiny to a few categories of cases, including when the government has a 20 discretionary system of “individualized . . . assessment.” 494 U.S. at 873. Strict ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 22 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1187 Page 23 of 32 1 scrutiny thus applies whenever the government denies a request for religious 2 accommodation under “circumstances in which individualized exemptions from a 3 general requirement are available.” Lukumi, 508 U.S. at 537. When applicable rules 4 give state actors “unfettered discretion” unrestricted by “particularized, objective 5 criteria,” courts apply strict scrutiny. See Stormans, 794 F.3d at 1081–82. 6 As discussed above, several open-ended regulations and policies give the 7 Department broad discretion—case-by-case—to determine whether a person 8 qualifies for a foster care license. And Department guidance gives licensors 9 “flexibility to ask different or additional questions in order to make the home study 10 process more accessible as well as to ensure that any areas of concern are fully 11 developed and can be thoroughly assessed.” ECF No. 20-2 at 1; ECF No. 25 at 11. 12 The Department argues “the licensing rules are generally applicable and 13 contain no exceptions that apply only to secular conduct.” ECF No. 43 at 20. But 14 Department guidance undermines this argument: “A holistic assessment is essential 15 to achieve the intent of each section and make final recommendations regarding 16 placement and permanency for children. All families are unique; these questions 17 are not one size fits all.” ECF No. 20-2. Department guidance thus envisions 18 “circumstances in which individualized exemptions from a general requirement are 19 available.” See Lukumi, 508 U.S. at 537. The Department encourages licensors to 20 consider an applicant’s religious beliefs and stances on LGBTQ+ rights, and a ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 23 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1188 Page 24 of 32 1 distinctive feature of the foster care licensing process is the licensor’s subjective 2 assessment of various criteria. 3 Department regulations and policies force the Blaises into a dilemma: adhere 4 to their religion and give up the benefit of a foster care license or forsake their 5 religion and get a foster care license. See Sherbert, 374 U.S. at 404. Because such 6 regulations and policies involving individualized assessments impose substantial 7 burdens on religious exercise, the Court concludes strict scrutiny applies to protect 8 free exercise rights from governmental encroachment. See id. The regulations and 9 policies here do not generally apply because the Department selectively imposes 10 burdens on only certain religious beliefs at odds with its policy to support LGBTQ+ 11 youth. See Lukumi, 508 U.S. at 543. 12 b. 13 In addition, “[t]he Free Exercise Clause ‘protect[s] religious observers 14 against unequal treatment’ and subjects to the strictest scrutiny laws that target the 15 religious for ‘special disabilities’ based on their ‘religious status.’” Trinity Lutheran 16 Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017) (quoting Lukumi, 17 508 U.S. at 533)); see also Smith, 494 U.S. at 877 (reiterating the free exercise 18 clause protects against the government’s imposition of “special disabilities on the 19 basis of religious views or religious status”). 20 Special Disabilities In Trinity Lutheran, for example, the Supreme Court addressed a Missouri ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 24 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1189 Page 25 of 32 1 state constitutional provision that prohibited the state from giving public benefits to 2 religious institutions. 137 S. Ct. at 2017. The church applied to participate in a state 3 program that gave grants to nonprofit organizations that repaved surfaces with 4 material made from recycled tires. Id. The state pointed out that declining to issue 5 the grant to the church in no way infringed on its religious exercise and noted that 6 it had no duty to give the grant in the first place. Id. at 2021–22. But the Court 7 disagreed: 8 9 10 11 12 13 14 15 16 17 18 19 20 [T]he Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a church, just as McDaniel was free to continue being a minister. But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, McDaniel says plainly that the State has punished the free exercise of religion: “To condition the availability of benefits ... upon [a recipient’s] willingness to … surrender[] his religiously impelled [status] effectively penalizes the free exercise of his constitutional liberties.” Id. (quoting McDaniel v. Paty, 435 U.S. 618, 626 (1978)). The Court emphasized it “has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest ‘of the highest order.’” Id. at 2019. Trinity Lutheran thus reaffirms that the government may not impose special disability or withhold government benefits because of one’s religion. See id; see also McDaniel, 435 U.S. at 626; Sherbert, 374 U.S. at 406. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 25 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1190 Page 26 of 32 1 Like the policy at issue in Trinity Lutheran, the Department’s policy at issue 2 here puts the Blaises to a choice: They may participate in an otherwise available 3 benefit program but only if they disavow their religious beliefs. See id. at 2021–22. 4 The Blaises are obviously free to worship as Seventh Day Adventists, just as Trinity 5 Lutheran was free to keep operating as a church. See id. But that freedom comes 6 with a cost: abandoning the chance to receive foster care license. See id. Trinity 7 Lutheran makes clear “that such a policy imposes a penalty on the free exercise of 8 religion that triggers the most exacting scrutiny.” Id. at 2021. 9 iii. Strict Scrutiny 10 Because the regulations and policies at issue operate as a religious 11 gerrymander, target the religious for individualized assessments, and impose 12 special disabilities on certain religious views, the law is neither neutral nor generally 13 applicable in this case. The Court therefore concludes strict scrutiny applies. 14 “A law failing to satisfy these requirements must be justified by a compelling 15 governmental interest and must be narrowly tailored to advance that interest.” See 16 Lukumi, 508 U.S. at 531–32. Still, “[t]he state may justify an inroad on religious 17 liberty by showing that it is the least restrictive means of achieving some compelling 18 state interest.” Thomas, 450 U.S. at 718. “The least-restrictive-means standard is 19 exceptionally demanding,” see Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 20 728 (2014), and it is not satisfied here. ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 26 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1191 Page 27 of 32 1 As the Blaises point out, 2 [t]he Department permissibly could address LGBTQ+ concerns at the placement stage, rather than at licensing. See Policy 6900; WAC 110148-1520. It could address the issue at a later, more appropriate age. It could develop a case plan for the child to authorize medical decisions that the Blaises cannot support for religious reasons. (Resp. at 13.) Or it could change placements in the rare situation where the Blaises might be unable, consistent with the religious beliefs, to carry out the Department’s decisions with respect to a particular child. 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ECF No. 46 at 5. The Department has not shown that it lacks other ways to achieve its desired goal without imposing a substantial burden on the Blaises’ exercise of religion. For these reasons, the Blaises have raised serious questions going to the merits of their free exercise claim.5 See All. for the Wild Rockies, 632 F.3d at 1131. B. Likelihood of Irreparable Injury The Department claims that the Blaises have not shown irreparable harm because they have no right to a foster care license and have failed to exhaust their administrative remedies. The Court disagrees. First, even if they have no right a foster care license, the free exercise clause protects against laws that “penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens.” Lyng, 485 U.S. at 449. Other Washingtonians may apply for the privilege and benefit of Because the regulations and policies at issue fail strict scrutiny as applied to the Blaises, the Court declines to reach their other arguments involving compelled speech, substantive due process, hybrid constitutional rights, and unconstitutional conditions. 5 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 27 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1192 Page 28 of 32 1 becoming a foster parent. Penalizing the Blaises for their religious beliefs violates 2 the free exercise clause by denying them an otherwise publicly available privilege 3 or benefit. See generally Trinity Lutheran, 137 S. Ct. 2012. 4 Second, exhaustion of administrative remedies is not a prerequisite to an 5 action under § 1983. Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 500–01, 6 516 (1982). 7 More importantly, though, the Blaises have suffered an irreparable injury: 8 “The loss of First Amendment freedoms, for even minimal periods of time, 9 unquestionably constitutes irreparable injury.” See, e.g., Elrod v. Burns, 427 U.S. 10 347, 373 (1976); Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012). By 11 denying their application for a foster license, they have also possibly lost the chance 12 to provide foster care for their great-granddaughter, H.V. IDHW is apparently 13 moving forward with having H.V. adopted by her current nonfamilial foster family. 14 The Department’s adverse ruling has hampered the Blaises’ relationship with their 15 great-granddaughter—an irreparable injury to be sure. 16 C. Balancing the Equities and Public Interest 17 When the government is a party, the balance of equities and public interest 18 factors merge. Drakes, 747 F.3d at 1092. To determine the balance of equities, 19 courts must “balance the interests of all parties and weigh the damage to each.” 20 Stormans, 586 F.3d at 1138 (citation omitted). ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 28 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1193 Page 29 of 32 1 While the Court recognizes that the Department has an important interest in 2 protecting foster children in its care and ensuring LGBTQ+ youth have supportive, 3 understanding foster parents, the Ninth Circuit has consistently “recognized the 4 significant public interest in upholding First Amendment principles.” Doe v. Harris, 5 772 F.3d 563, 583 (9th Cir. 2014) (quoting Sammartano v. First Jud. Dist. Ct., 303 6 F.3d 959, 974 (9th Cir. 2002)). Since the Blaises have raised serious First 7 Amendment questions, the law requires a finding that the balance of hardships tips 8 sharply in their favor. See, e.g., Am. Beverage Ass’n v. City & Cnty. of San 9 Francisco, 916 F.3d 749, 758 (9th Cir. 2019); Cmty. House, Inc. v. City of Boise, 10 490 F.3d 1041, 1059 (9th Cir. 2007). The Court concludes that the constitutional 11 free exercise rights at stake therefore outweigh the also very important interests the 12 Department has in protecting LGBTQ+ youth. 13 CONCLUSION 14 In sum, the Court determines the Blaises have satisfied the Winter criteria 15 governing preliminary injunctions. See 555 U.S. at 20. They have raised serious 16 questions going to the merits of their free exercise claim; they have also shown 17 irreparable injury and that the balance of hardships tips sharply in their favor. See 18 All. for the Wild Rockies, 632 F.3d at 1131. The Court therefore grants in part and 19 denies in part the motion for a preliminary injunction. The Court enjoins the 20 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 29 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1194 Page 30 of 32 1 Department from using Policy 6900 against prospective foster parents.6 The Court 2 finds the policy’s plain language applies only to Department staff and protects only 3 foster children who have already identified as LGBTQ+. The policy’s plain language 4 does not apply to foster care license applicants or children who might in the future 5 identify as LGBTQ+. 6 That said, the Court does not enjoin the Department from taking LGBTQ+ 7 considerations into account when reviewing foster care license applications. But a 8 foster care applicant’s answers to LGBTQ+ hypotheticals cannot serve as the sole 9 determining factor when an applicant expresses sincerely held religious beliefs. It 10 must base its decision on something more. If the only factor weighing against an 11 otherwise qualified applicant has to do with their sincerely held religious beliefs, the 12 Department must not discriminate against a foster care applicant based on their 13 creed. See Wash. Rev. Code § 49.60.030; Lambert-Eckel, supra, Policy 5100. The 14 Department must make reasonable accommodations for religion—especially in 15 The Court also enjoins Department July 2018 Policy Roll Out Questions & Answers to the extent inconsistent with this order. See ECF No. 25-4 at 5 n.1 (“LGBTQ, questions 4, page 3: ‘LGBTQ+ identities are discussed during the home study process. If there is a concern that the potential foster parents would not be able to appropriately meet the needs of any child or youth for any reason, they should be ’counseled out’ or the home study denied. The WAC requires that state and federal laws regarding nondiscrimination must be followed.’ (RCW 49.60.030)”). The Department must make reasonable accommodations for religion as discussed in this order and must not discriminate against foster care applicants based on their creed. See Wash. Rev. Code § 49.60.030; Lambert-Eckel, supra, Policy 5100. 6 16 17 18 19 20 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 30 Case 2:20-cv-00187-SMJ ECF No. 56 filed 10/08/20 PageID.1195 Page 31 of 32 1 cases like this one where the potential placement involves a biological family 2 member. As Department guidance suggests, it must evaluate each applicant 3 holistically: “All families are unique; these questions are not one size fits all.” ECF 4 No. 20-2. 5 The Department flags that the Blaises must still complete their application by 6 submitting to fingerprint-based background checks and completing other training to 7 qualify for a foster care license. ECF No. 25 at 17–18. As a result, the Court denies 8 the Blaises request for a mandatory injunction forcing the Department to issue them 9 a license. The Court vacates the Department’s ruling denying the Blaises application 10 for a foster care license. The Court remands to the Department to allow the Blaises 11 time to complete their outstanding application requirements and for further 12 consideration and reevaluation of the Blaises application consistent with this order. 13 The Court finds it would be premature to reach whether a permanent injunction 14 should issue. 15 Accordingly, IT IS HEREBY ORDERED: 16 1. The Blaises’ Amended Motion for Preliminary and Permanent 17 Injunction, ECF No. 31, is GRANTED IN PART and DENIED IN 18 PART as described above. 19 20 2. The Department is hereby ENJOINED from using Policy 6900, and any other Department policy or guidance inconsistent with this order, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 31 Case 2:20-cv-00187-SMJ 3. 4. 7 8 9 10 11 12 13 The Blaises’ request for a mandatory injunction forcing the Department The Department’s ruling denying the Blaises’ application for a foster care license is VACATED. 5 6 PageID.1196 Page 32 of 32 to issue them a license is DENIED. 3 4 filed 10/08/20 against prospective foster care license applicants. 1 2 ECF No. 56 5. This case is REMANDED to the Department for further proceedings consistent with this Order. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel. DATED this 7TH day of October 2020. __________________________ SALVADOR MENDOZA, JR. United States District Judge 14 15 16 17 18 19 20 ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR PRELIMINARY AND PERMANENT INJUNCTION – 32
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