catholic social services of southern illinois joins catholic charities lawsuit to continue to serve...
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IN THE CIRCUIT COURT FOR THE SEVENTH JUDICIAL CIRCUITSANGAMON COUNTY, ILLINOIS
CATHOLIC CHARITIES OF THE DIOCESE )
OF SPRINGFIELD-IN-ILLINOIS, an Illinois )non-profit corporation, CATHOLIC CHARI- )TIES OF THE DIOCESE OF PEORIA, an )Illinois non-profit corporation, CATHOLIC )CHARITIES OF THE DIOCESE OF JOLIET, )INC., an Illinois non-profit corporation, and )CATHOLIC SOCIAL SERVICES OF )SOUTHERN ILLINOIS, DIOCESE OF ) Case No. 2011 MR 254BELLEVILLE, an Illinois non-profit )corporation, )
Plaintiffs, ) Hon. John Schmidt
) Presiding Judgevs. ))
STATE OF ILLINOIS, LISA MADIGAN, in )her official capacity as the Attorney General )of the State of Illinois, ERWIN McEWEN, )in his official capacity as Director of the )Department of Children & Family Services, )State of Illinois, the DEPARTMENT OF )CHILDREN & FAMILY SERVICES, State of )Illinois, ROCCO J. CLAPPS in his official )
capacity as Director of the Department of )Human Rights, State of Illinois, and the )DEPARTMENT OF HUMAN RIGHTS, )State of Illinois, )
)Defendants. )
SECOND AMENDED AND SUPPLEMENTAL COMPLAINTFOR DECLARATORY JUDGMENT, PRELIMINARY AND
PERMANENT INJUNCTIONS, AND OTHER RELIEF
Plaintiffs, Catholic Charities of the Diocese of Springfield-in-Illinois, an Illinois non-
profit corporation, Catholic Charities of the Diocese of Peoria, an Illinois non-profit corporation,
and Catholic Charities of the Diocese of Joliet, Inc., an Illinois non-profit corporation, and
Catholic Social Services of Southern Illinois, Diocese of Belleville, an Illinois non-profit
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corporation (the latter alone hereinafter referred to as CSSSI Belleville), all of which are
hereinafter collectively referred to as Catholic Charities or plaintiffs, by their undersigned
attorneys, hereby complain of the defendants, the State of Illinois, Lisa Madigan, in her official
capacity as the Attorney General of the State of Illinois, Erwin McEwen, in his official capacity
as Director of the Department of Children & Family Services of the State of Illinois, the
Department of Children & Family Services, State of Illinois, Rocco J. Clapps, in his official
capacity as Director of the Department of Human Rights, State of Illinois, and the Department of
Human Rights, State of Illinois, as follows:
Nature of the Case1. Plaintiffs, Catholic Charities social service agencies for four Roman Catholic
Dioceses in the State of Illinois which have provided extensive adoption and foster family
services in Illinois for decades, bring this lawsuit in a pro-active effort to prevent the lawless
infliction of irreparable harm on plaintiffs as well as on many thousands of vulnerable and needy
children, families, and adults across the State of Illinois, and to avert the defendants needless
and arbitrary collapse of a critical network of social service agencies at a time when a budgetary
crisis already has stretched vital social services resources to the breaking point. In order to avert
this tragic crisis and prevent harmful and potentially cruel disruption, discontinuity, and
destabilization in the lives of so many of Illinois needy young people, families, and others,
plaintiffs are asking this Court to resolve several actual controversies, each of which turns on a
clear cut legal issue, that have arisen between them and the State of Illinois, the Attorney General
of the State of Illinois, the Director of the Department of Children & Family Services of the State
of Illinois (DCFS), DCFS itself, the Director of the Illinois Department of Human Rights
(IDHR), and IDHR itself. The instant controversies pose pure questions of law.
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Actual Controversy #1 Plaintiffs Are Not Places Of Public Accommodation
2. The initial question of law posed herein by plaintiffs is whether there is an
unavoidable conflict between, on the one hand, (i) plaintiffs conscientious fulfillment of the
historic, apostolic, and ministerial role of the Roman Catholic Church in providing
compassionate, competent, and professional social services more specifically, adoption and
foster care by means and methods that are faithful to the integral and essential tenets of the
Roman Catholic religious faith, and on the other hand, (ii) the defendant Attorney Generals
enforcement duties and responsibilities, as well as the enforcement duties and responsibilities of
the Director of IDHR and IDHR itself, with respect to the provisions of the Illinois HumanRights Act ( e.g. , 775 ILCS 5/101(A)(12)), which proscribe discrimination on the basis of, inter
alia , sexual orientation and/or marital status by place[s] of public accommodation within the
State of Illinois. Plaintiffs are asking for entry of a declaratory judgment in this lawsuit to the
effect that the place of public accommodation provisions of the Human Rights Act do not
apply to them because they are sectarian and religious and, therefore, they are excluded from
the scope of the Illinois Human Rights Act, which covers only those adoption agencies which
are non-sectarian. Plaintiffs provide vital social services, including adoption and foster care,
as part of their religious ministry, rooted in the Holy Scriptures, and carried on in relationship to
the Roman Catholic Church and under the spiritual governance and practical oversight of each
Diocesan Bishop. Thus plaintiffs social ministry is part of plaintiffs religious practice
inspired, sustained, and bound by religious principles. As a result, plaintiffs plainly do not and
cannot qualify as non-sectarian adoption agenc[ies], within the meaning of the Illinois Human
Rights Act.
3. Even assuming, arguendo , that these explicit provisions restricting the coverage
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of the public accommodation provisions of the Illinois Human Rights Act somehow might be
stretched so far as to cover and bind the plaintiffs, another Illinois statute, namely, the Illinois
Religious Freedom Restoration Act (IRFRA, 775 ILCS 35/1 et seq. ), necessarily would
preclude any such strained interpretation purporting to authorize an application of these
provisions of the Human Rights Act to plaintiffs. Pursuant to IRFRA, defendants reading of the
Human Rights Act to require the plaintiffs to process applications for adoption or foster care by
unmarried couples, regardless of whether they are same sex or opposite sex, would substantially
burden [plaintiffs] exercise of religion, imposing on plaintiffs a coercive choice of either
abandoning their religious convictions or failing to comply with defendants erroneous readingof Illinois law, infringing plaintiffs statutory rights, not to mention Article I, Section 3 of the
Illinois Constitution of 1970, which guarantees that [t]he free exercise and enjoyment of
religious profession and worship, without discrimination, shall forever be guaranteed and no
person shall be denied any civil or political right, privilege or capacity, on account of his [or her]
religious opinions. Therefore, pursuant to IRFRA, in order to prevail, the defendants would
bear a heavy burden of proof they cannot even remotely satisfy, namely, (a) proving that
coercing plaintiffs to process such unmarried couples applications, contrary to the tenets of
plaintiffs religious faith, would serve a compelling governmental interest, and (b) proving that
coercing plaintiffs to process such applications by unmarried couples, regardless of their sexual
orientation, would be the least restrictive means of furthering that compelling governmental
interest. Even if coercing Roman Catholic institutions to contravene such an essential tenet of
their religious faith could be said to serve a compelling governmental interest, defendants
plainly could serve that interest adequately by resorting to a far less restrictive alternative than
by forcing plaintiffs to betray and flout their faith. Defendants enjoy a medley of options apart
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from requiring plaintiffs to process such applications in contravention of their professed religious
faith, as indeed an entire host of other adoption or foster care agencies do not share plaintiffs
Roman Catholic religious beliefs and otherwise have no conscientious objections to processing
of such applications. Defendants may easily refer applications by such unmarried couples to
these other agencies. As a result, no couple would be denied access to legally available adoption
and foster care services were plaintiffs guaranteed the right to free exercise of their religious
faith. Therefore, defendants insistence that plaintiffs themselves process all such applications
for foster care or adoption is neither narrowly tailored nor the least restrictive means by which
defendants could adequately serve the interest of providing adoption or foster care services tounmarried couples who are either of same-sex or opposite sex orientation, because other agencies
already process their applications for adoption or foster care, and such applications readily may
be referred to such agencies in the future.
Actual Controversy #2 Plaintiffs Comply With The Civil Union Act
4. A second and similar actual controversy has arisen between plaintiffs, on one
hand, and the defendant Director of the Department of Children & Family Services (DCFS)
and the defendant DCFS itself, on the other hand, over another new Illinois statute, entitled the
Religious Freedom Protection and Civil Union Act, Public Act 096-1513, codified at 750 ILCS
75/1 et seq ., whose effective date was June 1, 2011. Said Act provides, inter alia , for the
registration and recognition of civil unions in Illinois between persons of the same sex or
between persons of the opposite sex. It further provides that [a] party to a civil union is entitled
to the same legal obligations, responsibilities, protections, and benefits as are afforded or
recognized by the law of Illinois to spouses, whether they derive from statute, administrative
rule, policy, common law, or any other source of civil or criminal law. Id. , Par. 20. Even
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though plaintiffs declining to process applications for foster care or adoption by unmarried
cohabiting couples, whether same sex or opposite sex, derives from plaintiffs religious faith, and
not from statute, administrative rule, common law, or any other source of civil or criminal law,
and therefore does not violate the restrictive provisions of said Act, defendants have taken an
adamant and unyielding position to the contrary, alleging that plaintiffs are in violation of
Section 20 of the newly effective Religious Freedom Protection and Civil Union Act. As a
result, defendants have now purported to bar the plaintiffs, without any basis in Illinois law, from
continuing plaintiffs ongoing series of annual contractual relationships with DCFS and the State
of Illinois, which have endured over many decades, for provision of vitally needed foster careand adoption social services of the highest quality.
4. Thus, defendants threatened action to bar plaintiffs from eligibility to enter into
new contractual relations with DCFS has triggered another actual case or controversy that also
turns on clear cut questions of law, which plaintiffs ask this Court to resolve and adjudicate by
means of a declaratory judgment. Plaintiffs believe not only that Section 20 of the newly
effective Act does not restrict their religiously motivated referrals of unmarried couples
applications for foster care or adoption to other providers, but also that here, too, they are exempt
from coverage under this new statute, the Religious Freedom Protection & Civil Union Act,
equally as they are exempted from the restrictive provisions of the place of public
accommodations provisions of the Illinois Human Rights Act. In this regard, plaintiffs cite
Section 15 of the new Act which provides, true to the Acts title, that:
Nothing in this Act shall interfere with or regulate the religious practice of anyreligious body. Any religious body, Indian Nation or Tribe or Native Group isfree to choose whether or not to solemnize or officiate a civil union.
As plaintiffs provision of adoption and foster care services and their declining to provide said
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services to unmarried couples, regardless of sexual orientation, are essential parts of their
religious mission and religious practice, the new Act is clearly inapplicable to them. Any
question concerning the scope of this express exemption on the face of the new law was put to
rest on the floor of the Illinois Senate on December 1, 2010, when Senator Koehler, sponsor of
the bill which was adopted later that day, answered specific, explicit questions put to him by
Senator Haine, to the effect that the two sentences in Section 15, supra, are to be read separately
so as to refer to religious practice[s] apart and distinct from the decision whether or not to
solemnize or officiate a civil union. Senator Haine referred to a variety of religious practices on
the part of these institutions of faith of all denominations, Christian and Jewish [which] go totheir various agencies providing social services , retreats, religious camps, homeless shelters,
senior care centers, adoption agencies , hospitals, a wide gamut of things. So, thats covered
under the first sentence of Section 15, he queried, to which Senator Koehler answered: Yes.
The certainly the intent of Representative Harris and I is not to at all, you know, impede the
rights that religious organizations have to carry out their what their duties and and religious
activities are (136 th Legislative Day, 96 th Gen. Assembly, Regular Session, Sen. Transcript, p.
81, emphasis added).
5. Nevertheless, defendants increasingly have made it crystal clear that they are
taking a hard and fast position that plaintiffs are in violation of said new Act, regardless of its
explicit provisions that do not restrict plaintiffs religious practice but rather exempt them from
the Acts prohibitions. First, DCFS Deputy Director wrote to Evangelical Child & Family
Services of Wheaton, Illinois (which is not a plaintiff herein and whom the undersigned counsel
do not represent) that the Director of DCFS had made a decision that, given the newly effective
Religious Freedom Protection and Civil Union Act, the contractual provision of foster care and
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adoption services would have to be inclusive of Civil Union relationships and that this decision
could well end DCFSs contractual relationship with Evangelical Child & Family Services,
saying: The decision to proceed with providing foster care will be yours to make, not DCFS,
and that, If the policy changes conflict with your agencies [sic] religious beliefs, you and your
Board can opt out of your foster care contracts, in which event DCFS would work to ensure
an orderly transition of cases to other service providers, which usually would take up to sixty
days. Thereafter, all social service providers, including all plaintiffs, reportedly received a
bulletin from the defendant, Erwin McEwen, Director of DCFS, insisting that every provider
would be bound to comply with the new law on civil unions as part of their contractorscertification of compliance with applicable law. Given the wording of the new law and its
inclusion of an express exemption for religious practice, plaintiffs believed they were in
compliance with the new law, and accordingly they took specific actions to establish their
exemption and compliance with Illinois law. Thus all plaintiffs but Belleville filed this lawsuit
early in June, 2011, delineating their precise legal contentions as to their exemption. Then said
plaintiffs sought and obtained a meeting with defendants on June 20, 2011, which was attended
by representatives of the both the Office of the Attorney General (who also represents defendant
IDHR) and DCFS. During that meeting, however, the defendants rebuffed plaintiffs contentions
that they were exempt and thus in compliance with law. Rather, defendants representatives
stated that they expected plaintiffs forthwith to opt out of any ongoing contractual relationship
with DCFS and that, should plaintiffs abide by their religious commitments and nonetheless
proceed to enter into new contracts with DCFS (as they proposed to do), then plaintiffs religious
practices necessarily would render them in violation of their contractual undertaking to comply
with all applicable Illinois laws, including, inter alia , the Human Rights Act non-discrimination
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mandates binding on places of public accommodation as well as the new Illinois Religious
Freedom Protection & Civil Union Act. Defendants, the Office of the Attorney General, DCFS,
and IDHR, and their respective Directors, have so far merely insisted repetitively, and yet
inexplicably that plaintiffs are not in compliance with Illinois law. Indeed, defendants have
persistently failed or refused to address or even discuss the salient, pivotal legal issues, let alone
recognize and acknowledge:
(a) that plaintiffs are not covered by the statutory constraints embodied in the new
Religious Freedom Protection and Civil Union Act but are excluded and exempt from
it as the new law explicitly recites that its provisions do not interfere with or regulatereligious practice;
(b) that any ambiguity arising from the text of the new law was eclipsed by Senator
Koehlers explicit assurances on the floor of the Illinois State Senate; and
(c) that the Illinois Religious Freedom Restoration Act, 775 ILCS 35/1 et seq., would
require that such substantial burdening of plaintiffs religious practice coercing
them against their conscience, and as a condition of continuing their long contractual
relationship with DCFS, to process unmarried couples applications for foster care
and adoption be justified by a compelling governmental interest, and that such a
substantial burden on plaintiffs religious practice be further justified by showing that
it is the least restrictive alternative narrowly tailored to satisfy such an allegedly
compelling governmental interest. Furthermore, any one of defendants many options
for referral of civil union couples to other agencies willing to entertain and process
their applications would manifestly constitute such a least restrictive alternative
fully adequate to satisfy any needs posed by recognition of civil unions, while also
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fully protecting plaintiffs religious freedom as the Acts very title would require.
Thus plaintiffs seek entry of a second declaratory judgment by this Court to the effect that
plaintiffs are not covered by the constraints on state government mandated by the Religious
Freedom Protection and Civil Union Act, and even if deemed covered by the text of those
constraints, the plaintiffs must be deemed exempt, insofar as defendants contend that those
constraints mandate that plaintiffs must deviate from their religious practice of declining to
process foster care and adoption applications by couples, whether same sex or heterosexual, who
are cohabiting but unmarried. Moreover, pursuant to IRFRA, supra , plaintiffs past practice of
referring said applicants for processing by DCFS or other social service providers, who do notshare plaintiffs religion-based conscientious objection to such processing, must in any event
suffice to render plaintiffs fully in compliance with Illinois law.
Actual Controversy #3 Defendants Abrupt Termination Of Plaintiffs Was Wrongful
6. Despite the seemingly hard and fast position that defendants took on the foregoing
statutory issues involving the Illinois Human Rights Act and the Illinois Religious Freedom
Protection and Civil Union Act at the parties June 20, 2011, meeting, defendants DCFS and
Director McEwen thereafter tendered new draft contracts to each of the plaintiffs for the
continued provision of foster care and adoption social services during the 2012 fiscal year, which
began on July 1, 2011, and will continue through June 30, 2012. Each of the plaintiffs signed
said contracts and returned them to DCFS and McEwen early in July, 2011, while continuing to
render adoption and foster care services in full accordance with the parties past practice in prior
years. DCFS also kept on performing under the parties ongoing contractual relationship,
continuing to refer new cases for foster care and adoption services on the part of plaintiffs even
past June 30th and continuing through July, 2011. Plaintiffs, however, served a motion herein
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for a temporary restraining order and preliminary injunction on Friday, July 8, 2011, which was
noticed for hearing Tuesday morning, July 12, 2011, whereupon later that same afternoon,
defendants McEwen of DCFS telefaxed a letter to all of the plaintiffs herein, each of which
stated as follows:
The Department of Children and Family Services is in receipt of your signed FY12 fostercare and adoption contracts. Based on your agencys June correspondence to theDepartment, the statements made by your representatives at the June 20, 2011 meetingwith representatives of the Department and the Attorney Generals Office and the legalposition your agency has taken and statements made in the initial Complaint and theAmended and Supplemental Complaint in the pending Catholic Charities, et al. v.
Madigan, et al. litigation, the Department of Children and Family Services is unable toaccept the offer and execute the contracts because your agency has made it clear that it
does not intend to comply with the Illinois Religious Freedom Protection and Civil UnionAct, 750 ILCS 75/1 et seq. That law applies to foster care and adoption services. Thus,there is no meeting of the minds as to the FY12 Foster Care and Adoption Contracts.
Accordingly, the Department will be in contact with you regarding transitioning cases.
Sincerely,
/s/ Erwin McEwenDirector
A copy of defendant McEwens letter, as addressed and telefaxed to one of the plaintiffs, but
otherwise identical to that sent to each of the other plaintiffs after 4 p.m. on Friday, July 8, 2011,
is appended hereto as Exhibit A.
7. Plaintiffs are seeking entry of a third declaratory judgment herein to the effect that
defendants attempted effort suddenly and peremptorily to terminate plaintiffs eligibility to
contract with DCFS and the State of Illinois for ongoing rendition of social services in the field
of foster care and adoption was arbitrary and capricious, without authority in Illinois law, and
constituted an egregious violation of plaintiffs rights to due process of law, as guaranteed them
pursuant to the due process clause, Article I, Section 2 of the Illinois Constitution of 1970, and
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was therefore void and of no legal force or effect. Plaintiffs, having satisfactorily maintained
contractual relations with the defendant DCFS for decades, having been duly licensed as social
service providers by DCFS through at least 2014, and having won many plaudits from DCFS for
superior and outstanding performance, possessed a legally protected property interest in
continuing their contractual relations with said defendant DCFS, which could not be so
arbitrarily denied and cut off by the defendants, without any legal basis, and without adequate
notice or hearing provided at a meaningful time and in a meaningful manner. Plaintiffs also
possessed a legally protectable liberty interest, pursuant to the applicable Illinois law, to carry on
their religious practice as a sectarian adoption agency without lawless interference on the part of state government. Defendant DCFSs violation of that liberty interest, and its co-defendants
complicity in that violation, also constituted a deprivation of liberty without due process of law
which also offended the Illinois Constitution of 1970, which must be held void.
Jurisdiction and Venue
8. This Court has jurisdiction over the subject matter pursuant to the Declaratory
Judgment provisions of the Illinois Code of Civil Procedure, 735 ILCS 5/2-701(a), as there are
now three actual controversies over the construction of a cluster of Illinois statutes. Defendants
more recent effort on July 8, 2011, to debar plaintiffs and brand them as ineligible for any further
contractual relationship with the State of Illinois poses the same underlying statutory issues as
well as constitutional issues, arising pursuant to the due process clause (Article I, Section 2) of
the Illinois Constitution of 1970. Those statutes whose construction is contested include the
Illinois Human Rights Act, supra , and the Illinois Religious Freedom Protection & Civil Union
Act, supra , both of which must be construed and enforced in light of the provisions of a third
Illinois statute, namely, the Illinois Religious Freedom Restoration Act (IRFRA), 775 ILCS
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35/1 et seq . More specifically, the first statutory dispute between plaintiffs, on the one hand,
and defendants, on the other hand, is whether 775 ILCS 5/5-101(A)(12) of the Illinois Human
Rights Act, which defines the phrase, place of public accommodation, to include only any
non-sectarian adoption agency, may be interpreted to encompass the plaintiffs, even though
plaintiffs do not qualify as non-sectarian. On the contrary, plaintiffs are sectarian adoption
agencies whose mission and character are indisputably religious. Further, the Court has
jurisdiction pursuant to Section 20 of IRFRA, 775 ILCS 35/20, which provides that a person
whose exercise of religion has been burdened in violation of this Act may assert that
violation as a claim or defense in a judicial proceeding and may obtain appropriate relief againsta government. This same statutory dispute also pits plaintiffs against the defendant, Illinois
Department of Human Rights (IDHR), which could only exercise jurisdiction to enforce the
Illinois Human Rights Act against plaintiffs if the latter could be deemed places of public
accommodation, a construction at odds with the text of that Act as well as its legislative history
and in contravention of IRFRA, supra.
9. Moreover, the second actual controversy between plaintiffs and defendants
implicates the construction of the Religious Freedom Protection and Civil Union Act, and more
specifically, whether the constraints on government embodied in Section 20 of that Act also
apply to private social services providers, such as plaintiffs, who are merely independent
contractors for the State of Illinois, bound to render specified social services for the government,
which also contracts with a wide variety of other social service providers alternate providers
who may adequately dispense on behalf of the government those certain services which plaintiffs
themselves decline to provide on account of their religion-based conscientious objections.
Further, plaintiffs contend, in any event, that they are exempt from any constraints said Act
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might impose on their religious practice, pursuant to the provision in Paragraph 15 of that Act.
In particular, plaintiffs contend that the Act explicitly bars Illinois or any state agency from
purporting to regulate or interfere with plaintiffs religious practice, namely, its declining as a
matter of conscience to process foster care and adoption applications from unmarried cohabiting
couples, whatever their sexual orientation. This second actual legal dispute also implicates the
Illinois Religious Freedom Restoration Act, 775 ILCS 35/1 et seq. , as defendants threatened
action against plaintiffs would constitute a significant burden on the free exercise of their
religious faith, as defined in that Act, triggering in turn the imposition of an evidentiary burden
on defendants that they cannot meet, namely, having to prove that Illinois has a compellinggovernmental interest in forcing plaintiffs to go against their fundamental religious beliefs and
that said compelling interest could not be adequately served by a less restrictive alternative than
forcing plaintiffs either to cease furnishing the vital adoption and foster care they have been
providing for years to Illinois citizens in furtherance of their religious mission and character or,
rather, to betray their religious faith. Indeed, the defendants referral of unmarried couples to
other agencies that do not share plaintiffs conscientious objections would more than adequately
serve the defendants stated interests.
10. The third actual controversy dividing plaintiffs and defendants arose on July 8,
2011, when the defendant DCFS, whom plaintiffs believe to have been acting in complicity with
one or more of its co-defendants, attempted without any legal basis given the defendants gross
misconstruction of all the relevant Illinois statutes ( supra ) to deem plaintiffs suddenly
ineligible to engage in any further contractual relationship with DCFS. Plaintiffs contend,
therefore, that this was an arbitrary and capricious action, which deprived them of legally
protectable property and liberty interests without any reasonable or timely prior notice or
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meaningful opportunity to be heard in a meaningful manner as required by the due process
clause of Article I, Section 2 of the Illinois Constitution of 1970.
The Controversies At Bar Are Real, Actual, Ripe, And Justiciable
11. These controversies between plaintiffs and defendants are real, actual, and
imminent, far from remote, and none is hypothetical, speculative or moot in the slightest. On or
about March 8, 2011, the defendants, through the office of the Attorney General, State of Illinois,
wrote to Catholic Charities of the Diocese of Springfield in Illinois, as well as to each of the
other plaintiffs, stating, inter alia , that the Attorney General had received notice that Catholic
Charities discriminates against Illinois citizens in violation of the Illinois Human Rights Act.Specifically, the defendant Attorney Generals office stated its understanding that Catholic
Charities has requirements for potential foster or adoptive parents that are not required by
Illinois law for example, requirements about religious beliefs or refuses to provide services to
potential foster or adoptive parents in violation of Illinois law for example, refuses to provide
services based on the marital status or sexual orientation of a potential foster or adoptive parent.
The defendants letter went on to request that Catholic Charities respond to a detailed request for
information and documentation, relative to plaintiffs Foster Care and Adoption Practices,
including:
All contracts with the Illinois Department of Children and Family Services
(DCFS);
All policies, procedures and manuals relating to services provided pursuant to
contracts with DCFS;
All policies and requirements for (a) foster parents; and (b) adoptive parents;
All services provided by the Organization and location(s) where each service is
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provided;
The Organizations financial statements, including, but not limited to (a) IRS Form
990; (b) Illinois Charitable Organization Annual Reports filed with the Illinois Office
of the Attorney General; (c) Annual Reports; and (d) all other financial statements
regardless of whether or not they are audited;
The Organizations by-laws or articles of incorporation;
The Organizations mission statement or other documents regarding the purpose of
the Organization;
All documents regarding the relationship of the Organization to the [Catholic Church
or other religious body];
All employee handbooks;
All documents concerning complaints of discrimination against the Organization that
were filed with the Illinois Department of Human Rights or in any state or federal
court, including but not limited to complaints alleging discrimination on the basis of
race, color, religion, national origin, marital status or sexual orientation; and
State whether any court, commission, department, including but not limited to those
listed in Request Number 10, has found that the Organization was or was not liable
for discrimination and, if so, produce a copy of the judicial or administrative order or
decision.
A copy of said defendants letter to one of the plaintiffs, which mirrors the letters sent to the
others, is attached hereto as Exhibit B.
12. Plaintiffs were given deadlines within which to provide documents and data to the
Attorney General, and although the deadlines were extended and the parties (apart from
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Belleville) never met until June 20, 2011, the Attorney General has so far taken no further
enforcement action against the plaintiffs. Nevertheless, when asked in open court on July 12,
2011, whether the Attorney General would cease and desist from any further enforcement action
thereafter, the Assistant Attorney General declined to answer, disclaiming any authority to
address the matter. Plaintiffs, therefore, have feared and continue to fear an imminent effort by
the defendants to enforce the foregoing requests, pursuant to Section 10-104(A) of the Human
Rights Act, 775 ILCS 5/10-104(A), which provides, inter alia , that:
(1) Whenever the Illinois Attorney General has reasonable cause to believe thatany person or group of persons is engaged in a pattern or practice of
discrimination prohibited by this Act, the Illinois Attorney General maycommence a civil action in the name of the People of the State, as parens patriaeon behalf of persons within the State to enforce the provisions of this Act in anyappropriate circuit court.
(2) Prior to initiating a civil action, the Attorney General shall conduct apreliminary investigation to determine whether there is reasonable cause tobelieve that any person or group of persons is engaged in a pattern and practice of discrimination declared unlawful by this Act and whether the dispute can beresolved without litigation. In conducting this investigation, the Attorney Generalmay:
(a) require the individual or entity to file a statement or report in writing underoath or otherwise, as to all information the Attorney General may considernecessary;
(b) examine under oath any person alleged to have participated in or withknowledge of the alleged pattern and practice violation; or
(c) issue subpoenas or conduct hearings in aid of any investigation.
***
(6) If any person fails or refuses to file any statement or report, or obey anysubpoena, issued pursuant to subdivision (A)(2) of this Section, the AttorneyGeneral will be deemed to have met the requirement of conducting a preliminaryinvestigation and may proceed to initiate a civil action pursuant to subdivision(A)(1) of this Section.
13. The defendant Attorney Generals aforesaid efforts to enforce the Illinois Human
Rights Act against the plaintiffs have been patently in excess of her authority, as a matter of law,
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inasmuch as plaintiffs are not covered by the public accommodations provisions of the Illinois
Human Rights Act, nor are plaintiffs, therefore, bound by its proscriptions. Therefore, plaintiffs
should not have to comply with defendants request for such voluminous documentation and
data, to the extent that said request is predicated on those cited statutory provisions related to
public accommodations. Nor do plaintiffs believe in the slightest that they are illegally
discriminating, within the meaning of the public accommodations proscriptions of the Human
Rights Act, as contended by the defendant Attorney General, and her clients, defendants DCFS
and its Director, IDHR and its Director, and the State of Illinois, by virtue of their faithful
religious practice in connection with adoptions and foster care. The parties are, therefore, caughtup in an actual controversy that is fully justiciable and ripe for adjudication, and which they
properly bring before this Court, asking that it resolve the clear cut legal issues dividing the
parties herein, as to which this Court is fully empowered to issue a binding declaratory judgment.
Moreover, plaintiffs urge that the Court bar the defendant, Attorney General, from instituting any
other legal action against the plaintiffs within the State of Illinois, purportedly in pursuance of
the above-quoted statutory provisions ( supra ).
14. Furthermore, although defendants DCFS and McEwen purported on July 8, 2011,
to debar plaintiffs from eligibility for any further annual contracts for provision of adoption and
foster care services before this Court could hear plaintiffs motion for preliminary injunction on
July 12, 2011, defendants letters (Exhibit A, attached) did not constitute an irreversible fait
accompli as said defendants have not and could not have implemented their decision, as they
concede its implementation would have necessitated a lengthy prospective period of
transitioning, e.g., removing children in foster care from the supervision of plaintiffs social
workers to supervision by other agencies and perhaps removing them to placements with new
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foster families, etc. This Courts preliminary injunction, restoring the status quo ante, has
forestalled such transitioning and barred defendants, pendente lite , from otherwise implementing
its purported decision to debar plaintiffs from eligibility for further contractual relations with
defendants upon their sole stated grounds, which plaintiffs contend herein to be illegal.
Mootness does not apply, in any event, to such matters of the utmost gravity as are at stake in
this litigation, which command a surpassing public interest.
Plaintiffs Have Legal Standing To Sue
15. Plaintiffs are also fully clothed with legal standing to bring this suit. Plaintiffs
have enjoyed a longstanding, ongoing, and continued contractual partnership with the State of Illinois, going back decades, providing charitable social services including, inter alia , services
related to adoption and foster care. Plaintiffs have supplied these services in the public interest,
and for the benefit of the defendant DCFS, on a break-even or loss basis, in fulfillment of their
religious mission and in carrying out their apostolic ministry, with benefits flowing directly to
needy and vulnerable Illinois children and families. Under the circumstances, plaintiffs have
legally protectable property and liberty interests in continuing their contractual relations with
DCFS, and they are fully entitled to apply to this Court to invoke the benefit and protection of
Illinois law against such legally baseless deprivation of their ongoing provision of these vital
services, sundering plaintiffs eligibility for ongoing contractual relations with the State of
Illinois. Nor might DCFSs abrupt and arbitrary refusal to renew plaintiffs eligibility to enter
renewed social service provider contracts with DCFS on account of defendants baseless
discrimination claims be assailed, adjudicated, or restrained in any available administrative
forum. This case is fully deserving of a complete and final adjudication before this Court.
Exhaustion Of Administrative Remedies Is Neither Feasible Nor Required
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16. There is no requirement that plaintiffs exhaust any administrative remedy before
DCFS or the Illinois Human Rights Commission, because there is no such remedy. The Illinois
Human Rights Act provides that the defendants claims of pattern or practice discrimination
must be adjudicated before the Illinois circuit courts, whether or not a charge has been filed
before the Commission. 775 ILCS 5/10-104(A). Nor does IDHR have any jurisdiction to
entertain or investigate any other charge of discrimination against the plaintiffs which might be
predicated on the baseless claim that they are places of public accommodation and thus bound by
the proscriptions of the Illinois Human Rights Act in their adoption or foster care programs.
Such jurisdiction would only exist if plaintiffs could be classified as places of publicaccommodation, which would be contrary to law. And indeed, the sole issues posed herein are
clear cut legal issues, peculiarly and eminently suitable for adjudication and resolution by the
judiciary, as said issues relate to the interpretation of statutes, either on their face or as applied to
indisputable facts plainly appearing before this Court, or relating to the constitutional
inadequacy, as measured by due process standards enunciated under the Illinois Constitution of
1970, of an arbitrary, abrupt debarment of longstanding contractors of the State of Illinois from
any eligibility for future contracts, without benefit of any provision whatsoever for prior notice
or hearing at a meaningful time and in a meaningful manner.
Venue Is Properly Laid Here
17. Venue is properly laid as both plaintiff, Catholic Charities of the Diocese of
Springfield in Illinois, a non-profit corporation, and all of the defendants maintain offices within
Sangamon County, which encompasses the city of Springfield, the capital city of Illinois.
The Parties
18. Plaintiff Catholic Charities of the Diocese of Springfield-in-Illinois is an Illinois
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non-profit corporation with its principal place of business in Springfield, Sangamon County,
Illinois.
19. Plaintiff Catholic Charities of the Diocese of Peoria is an Illinois non-profit
corporation with its principal place of business in the city of Peoria, Peoria County, Illinois.
20. Plaintiff Catholic Charities of the Diocese of Joliet is an Illinois non-profit
corporation with its principal place of business in the city of Joliet, Will County, Illinois.
21. Plaintiff Catholic Social Services of Southern Illinois, Diocese of Belleville
(sometimes hereinafter referred to as CSSSI Belleville), is an Illinois non-profit corporation
with its principal place of business in the city of Belleville, St. Clair County, Illinois.22. Defendant, State of Illinois, is a political entity amenable to suit in this Circuit
Court for the Seventh Judicial Circuit, Sangamon County, the City of Springfield, Illinois, the
seat of Illinois State Government.
23. Defendant, Lisa Madigan, sued herein only in her official capacity, as the
Attorney General of the State of Illinois, has a principal office within the city of Springfield,
Sangamon County, Illinois. Said defendant is sued herein for purposes of plaintiffs securing a
declaratory judgment to the effect that her proceeding against plaintiffs is patently in excess of
her specific statutory authority, as delegated to her pursuant to the Illinois Human Rights Act.
24. Defendant, Erwin McEwen, sued herein only in his official capacity, is the
Director of the Department of Children & Family Services (DCFS), State of Illinois, and
defendant, DCFS, have a principal office in Springfield, Sangamon County, Illinois. Defendant
McEwen as well as defendant DCFS are also being sued herein for purposes of plaintiffs seeking
relief against them by reason of their acting clearly in excess of their legal authority pursuant to
Illinois law.
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25. Defendant, Rocco J. Clapps, sued herein only in his official capacity, as the
Director of the Department of Human Rights (IDHR), State of Illinois, and defendant, IDHR,
have a principal office in Springfield, Sangamon County, Illinois. Said defendants are also sued
herein for purposes of plaintiffs seeking relief against them, by reason of their threatened action
against plaintiffs in excess of their authority pursuant to Illinois law.
CAUSES OF ACTION
COUNT I(Declaratory Judgment Sectarian Adoption Agencies Exempt from Human Rights Act )
1-25. Plaintiffs hereby repeat and re-allege each and every allegation contained in
paragraphs 1 through 25 inclusive hereof with the same force and effect as if fully set forth
herein.
26. The Attorney General, acting in her official capacity on behalf of the defendant
State of Illinois, has asserted by letter dated March 8, 2011, that plaintiffs are bound by the
public accommodations provisions of the Illinois Human Rights Act. Said defendants also have
alleged that they have received notice that plaintiffs are discriminating against Illinois citizens
based inter alia on marital status and sexual orientation in their provision of adoption and foster
care services. More specifically, said defendants have focused on plaintiffs requirements for
potential foster or adoptive parents that are not required by Illinois law or refus[al] to provide
services to potential foster or adoptive parents in violation of Illinois law for example, refus[al]
to provide services based on the marital status or sexual orientation of a potential foster or
adoptive parent.
27. Furthermore, said defendants appear to have invoked 775 ILCS 5/10-104(A) of
the Illinois Human Rights Act, which empowers the Attorney General of Illinois to conduct
investigations to determine whether there is reasonable cause to believe that any person or
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group of persons is engaged in a pattern or practice of discrimination declared unlawful by this
Act, to make sweeping requests for the production of information and documents from the
plaintiffs, indicating that the defendants believe that the discrimination on the part of plaintiffs
of which they purport to have notice is indeed widespread and systematic.
28. The public policy embodied in the Illinois Human Rights Act bans various types
of discrimination including discrimination on the basis of marital status and sexual orientation,
etc. but only in connection with employment, real estate transactions, access to financial
credit, and the availability of public accommodations. Operation of an adoption agency, as
carried on by plaintiffs as part of their social services ministry, fits none of the first threecategories just mentioned employment, real estate transactions, or access to financial credit.
The public accommodations provisions are pertinent, however, and the question is squarely
posed here, whether those provisions apply to the plaintiffs, who operate sectarian adoption
agencies.
29. Before the 2007 amendment of the Illinois Human Rights Act, that Act defined a
place of public accommodation as a business, accommodation, refreshment, entertainment,
recreation, or transportation facility of any kind, whether licensed or not, whose goods, services,
facilities, privileges, and advantages of accommodations are extended, offered, sold, or otherwise
made available to the public. 775 ILCS 5/5-101(A)(1). The Act provided, by way of examples,
a lengthy laundry list of place[s] of public accommodation, including facilities of the
following types, as follows:
[I]nns, restaurants, eating houses, hotels, soda fountains, soft drink parlors,taverns, roadhouses, barber shops, department stores, clothing stores, hat stores,shoe stores, bathrooms, restrooms, theatres, skating rinks, public golf courses,public golf driving ranges, concerts, cafes, bicycle rinks, elevators, ice creamparlors or rooms, railroads, omnibuses, buses, stages, airplanes, street cars, boats,funeral hearses, crematories, cemeteries, and public conveyances on land, water,
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or air, public swimming pools and other places of public accommodation andamusement. 775 ILCS 5/5-101(A)(2).
In 1994, the Illinois Supreme Court held in Board of Trustees of Southern Illinois Univ. v. Dept
of Human Rights, 159 Ill.2d 206, 211 (1994), that the Illinois Department of Human Rights
lacked jurisdiction under the Illinois Human Rights Act to entertain complaints alleging racial
discrimination in the academic program of public universities. The high Court stated that the
definition of place of public accommodation set forth at 775 ILCS 5/5-101(A)(1) had to be
read in light of the examples given at 775 ILCS 5/5-101(A)(2)( Bd. of Trustees, supra, 159 Ill.2d
at 211), applying the maxim of statutory construction known as ejusdem generis. Under that
maxim,when a statute lists several classes of persons or things but provides that the list is not
exhaustive, the class of unarticulated persons or things will be interpreted as those others such
like the named persons or things. Id. (internal citations omitted). The Court noted that the
terms institution of higher education, education program, and classroom were not
contained anywhere in the list provided in the Act (again, this was before it was amended in
2007). Id. Further, the Court observed, the examples listed in the Act are fundamentally
different from institutions of higher education, which administer educational programs. Id. at
212. Instead, the Court explained, [t]he cited establishments are examples of facilities for
overnight accommodation, entertainment, recreation or transportation. Id. The definition
specifically requires that the services, facilities, privileges, advantages or accommodations [b]e
extended, offered, sold, or otherwise made available to the general public. Id. (citation
omitted). As a consequence, what was anticipated by the General Assembly is a restaurant, a
pub, or a bookstore, but not an academic program of a higher education institution. Id.
Accordingly, the Illinois Supreme Court held that the conduct alleged by the Illinois Department
of Human Rights did not fall within its jurisdiction. Id.
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30. The reasoning of the high Court in Board of Trustees of SIU was followed in
several Appellate Court decisions, which held that the term place of public accommodation did
not include a business offering scuba diving classes which required physical and other standards
to be met by prospective students ( Gilbert v. Dept of Human Rights, 343 Ill.App.3d 904 (1 st
Dist. 2003)). Nor did it encompass a company offering health insurance ( Cut n Dried Salon v.
Dept of Human Rights, 306 Ill.App.3d 142 (1 st Dist. 1999)). Nor did it include a dental office
( Baksh v. Human Rights Commn, 304 Ill.App.3d 995, 1002-06 (1 st Dist. 1999)). Plaintiffs
contend that, under this line of authority, it is clear that an adoption agency would not be
regarded as a place of public accommodation within the meaning of the Illinois Human RightsAct.
31. In 2007, the Illinois Human Rights Act was amended, and by that amendment the
definition of place of public accommodation was deleted. Replacing the definition was a
detailed list of specific examples, some of which had been held not to be places of public
accommodation under the pre-amended wording of the statute and the cases decided under that
prior wording of the Act ( e.g., insurance offices, the professional offices of health care providers
and certain educational institutions). See, 775 ILCS 5/5-101(A)(1)-(13). But with respect to the
issue posed in this litigation, the list of examples of public places of accommodation now
includes a senior citizen center, homeless shelter, food bank, non-sectarian adoption agency , or
other social service center establishment . 775 ILCS 5/5-101(A)(12)(emphasis supplied).
Plaintiffs contend that the obvious and unavoidable implication of this amended language is that
a sectarian (i.e., religiously-based) adoption agency is not a place of public accommodation,
and, therefore, does not fall within the scope of the Illinois Human Rights Act, nor within the
jurisdiction of either the defendant, Illinois Department of Human Rights, or the Illinois Human
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confined to non-sectarian adoption agencies, and so explicitly intended to exempt sectarian
adoption agencies such as plaintiffs. Nor are plaintiffs bound by any provisions restricting their
religious practice with reference to adoption and foster care in plaintiffs contracts with the
defendants, DCFS or the State of Illinois, including not only their past contracts but also the
contracts that defendants McEwen and DCFS initially proposed that plaintiffs execute for the
upcoming fiscal year, July 1 through June 30, 2012, but which defendants then refused to
execute, abruptly purporting to end plaintiffs decades-old public/private partnership with
DCFS. There is no legal basis for defendant, DCFS, or any other defendant, claiming that
plaintiffs have been, or would be, in violation of any provision in said contracts mandating theircompliance with Illinois law.
WHEREFORE, pursuant to Count I, plaintiffs pray that the Court issue a declaratory
judgment to the effect that plaintiffs are not covered by the public accommodation provisions of
the Illinois Human Rights Act, nor are they subject to the jurisdiction of the Illinois Department
of Human Rights or the Human Rights Commission with respect to the proscriptions against
discrimination by reason of marital status or sexual orientation or otherwise which arise from and
are predicated upon those provisions; that any pattern or practice investigation or other
enforcement action on the part of the Illinois Attorney General, pursuant to the public
accommodations provisions of the Human Rights Act, would be in excess of the Attorney
Generals delegated authority under that Act; and that the Court grant plaintiffs all other relief to
which they may be entitled upon Count I hereof.
COUNT II(Declaratory Judgment Claim That Plaintiffs Are Also Exempt From The New
Illinois Religious Freedom Protection & Civil Union Act )
1-34. Plaintiffs hereby repeat and re-allege each and every allegation contained in
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paragraphs 1 through 34 inclusive hereof of Count I with the same force and effect as if fully set
forth herein.
35. As is hereinabove alleged, plaintiffs are informed and believe that, on or about
May 5, 2011, the Deputy Director of the defendant, DCFS, wrote to another religious social
services agency, Evangelical Child & Family Services of Wheaton, Illinois (not a party to this
lawsuit, nor represented by counsel for plaintiffs herein), citing the new Illinois statute entitled,
Religious Freedom Protection and Civil Union Act, Public Act 096-1513, due to become
effective on June 1, 2011. In his letter to Evangelical Child & Family Services, the DCFS
Deputy Director reportedly advised that the Department will be revising policies and proceduresto include recognition of Civil Unions [which] may impact potential service delivery issues for
faith-based agencies. The Deputy Director also is reported to have written that the defendant
Director of DCFS will be sending out a letter to all agencies sharing the Departments intention
to be inclusive of Civil Union relationships relative to adoption and foster children. It was
further stated in said letter that DCFS decision to be so inclusive of Civil Union relationships
in connection with adoption and foster care might well have a dispositive and terminal impact on
that sectarian adoption agencys future relationship with DCFS. Specifically and pointedly, the
Deputy Director observed that, [I]f the policy changes conflict with your agencies [ sic ] religious
beliefs, you and your Board can opt out of your foster care contracts, and in that event, DCFS
would work to ensure an orderly transition of cases to other service providers, usually taking
up to sixty days.
36. More recently, all of the plaintiffs received such a letter from DCFS, dated May
10, 2011, and addressed to All Department Service Providers and Contractors, in which
DCFS Director, defendant Erwin McEwen, bannered a string of boldface admonitions
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(REMINDER REMINDER REMINDER REMINDER ), beneath which he advised the
DCFS service providers and contractors, including plaintiffs, that the Illinois Religious Freedom
Protection and Civil Union Act, 750 ILCS 75/1 et seq, had been signed into law in January 2011,
and that it amends and supplements existing state and federal laws which prohibit
discrimination on the basis of sexual orientation. Mr. McEwen then proclaimed, also in
boldface, an additional admonition, as follows:
All federal and state anti-discrimination laws, including the Illinois ReligiousFreedom Protection and Civil Union Act, are incorporated by reference into IDCFScontracts and subcontracts.
Later, also in boldface print, McEwen noted specifically that DCFS standard Contract provides:IDCFS Contractors and their subcontractors are required to comply with theIllinois Religious Freedom Protection and Civil Union Act and all other state andfederal equal opportunity laws.
McEwens bulletin also pointed to other provisions in DCFSs standard contracts that bind all
service providers to observe all applicable laws, and to certify their compliance with Illinois
law. This bulletin, on top of the reported letter to the Evangelical Child & Family Services,
reinforces that defendants were taking a hard and fast position that the Religious Freedom
Protection and Civil Union Act somehow bound the plaintiffs, as if it negated rather than
protected plaintiffs rights to continue their religious practice in providing foster care and
adoption services. This hardening position on the part of the defendants had been foreshadowed
by a March 2, 2011, story in the Chicago Tribune to the effect that Attorney General Lisa
Madigan, Gov. Pat Quinns legal team and the Department of Children and Family Services are
carefully researching the Illinois Human Rights Act, the Civil Union Act and the Illinois
Constitution to determine whether they prohibit agencies from considering sexual orientation as
a factor in foster care and adoption in Illinois, etc. Furthermore, the same newspaper story
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types of religious practices and inquiring whether they were all covered by the disclaimer of any
intent to regulate or interfere with them in Section 15, Senator Koehler answered unequivocally,
Yes. The certainly the intent of Representative Harris and I is not to at all, you know, impede
the rights that religious organizations have to carry out their what their duties and and
religious activities are (136 th Legislative Day, 96 th Gen. Assembly, Regular Session, Sen.
Transcript, p. 81 emphasis added; supra, p. 7).
39. That the plaintiffs involvement in foster care, adoption and other social services
is a central, critical element of their religious practice is patent. Catholic Charities mission is
said to fulfill the Churchs role in giving charitable aid to anyone in need by providingcompassionate, competent and professional services that strengthen and support individuals,
families and communities based on the value and dignity of all human life. Catholic Charities
agencies around the entire United States form a network, which includes the plaintiffs herein,
comprising more than 1,700 agencies and institutions, involving thousands of programs, over
62,000 staff members, and more than 240,000 volunteers. Essential features of Catholic
Charities agencies mark them as indelibly Roman Catholic:
Catholic Charities ministries are deeply rooted in the Scriptures, including the
Hebrew Scriptures in which the very heart of the biblical concept of justice was the
care of the widow, orphan, and stranger the gauge of whether one understood his or
her relationship to God and to one another. Catholic Charities contemporary work
continues to focus primarily on these same groups: women who are poor; childrenwho are poor; and individuals who are marginalized, including foreign workers,
immigrants, refugees, racial minorities, disabled persons, those afflicted with
HIV/AIDS, or other conditions that set them apart. All these needy and vulnerable
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human beings are children of the one God who is passionately concerned for the least
among us. This was Jesus teaching, as in the judgment scene in Matthew 25, where
Jesus tells his followers that the world will be judged by how they treat the hungry,
homeless, sick, imprisoned, and poor.
Catholic Charities ministry has been an integral part of the Catholic Church for 2,000
years. In the earliest days, the apostles appointed the seven deacons whose first
ministry was to make sure that justice was reflected in the life of the community and
that poor widows and children received care. This ministry of care was
institutionalized and flourished in the great monasteries of the first millennium as the
religious communities cared for the widows and orphans, sick, elderly, wayfarers, and
the poor. Later in the cities, religious orders established orphanages, homes for the
sick and elderly, hospices, and other centers for health and social services. Lay and
religious groups, such as those begun by St. Vincent de Paul, expanded and deepened
this work, and throngs of saints were known for ministries to the poor and vulnerable,
including St. Francis of Assisi, St. Clare, St. Peter Claver, St. Catherine of Siena, St.
Martin de Porres, and St. Elizabeth Seton. The Ursuline Sisters of New Orleans
pioneered the institutionalization of this vital work in the New World, starting in New
Orleans in 1727 where they built an orphanage, home for women, and health care
facility. By 1900 there were more than 800 Catholic charitable institutions in the
U.S., and now staff and volunteers serve almost 7 million persons a year with grouphomes, elderly residences, family counseling centers, hospices for HIV/AIDS
patients, soup kitchens and homeless shelters, among a vast array of social services.
Plaintiffs Catholic Charities agencies alone serve thousands of children in foster care
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daily, helping children heal from abuse such as trauma and neglect, stabilizing their
lives by avoiding multiple moves among different foster homes, resolving problems
that led to placement, and finding stable, lasting relationships for traumatized
children.
Catholic Charities promote the sanctity of human life and the dignity of the human
person. Although society may exclude some people because of sickness, disability,
poverty, racial bias, disease, undocumented or imprisoned status, Catholic Charities
reaches out to them with respect for their human dignity, a sacred concept at the very
root of Catholic social teaching. Jesus Christ rejected no one from his healing touch,
and enjoyed fellowship meals with tax collectors and sinners. Among Catholic
Charities ethical standards and values that shape their work is the preferential option
for the poor articulated by the late Pope John Paul II.
Catholic Charities are authorized to exercise their ministry by the Diocesan Bishop.
All four plaintiffs herein have a formal Catholic identity in relationship to the Church
and their respective Diocesan Bishops, each of whom is charged in Church teachings
and canon law with responsibility for the apostolate within Diocesan confines.
Catholic Charities respect the religious beliefs of those whom it serves through its
various ministries. This respect for persons of other faiths or no faith stems from a
determined position to serve the entire community, a custom going back as far as the
fourth century and, again, in this country to the Ursuline Sisters in New Orleans in
1727. In the pattern of Christ Jesus, Catholic Charities feed the hungry, homeless,
depressed, troubled, and frail regardless of their religious beliefs. Thus Jesus cured
the Canaanite woman in Matthew 15 and the Centurions servant in Luke 7. On April
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18, 1997, the Pope, John Paul II, directed that: Actions of aid, relief, and assistance
should be conducted in a spirit of service and free giving for the benefit of all persons
without the ulterior motive of eventual tutelage or proselytism.
Catholic Charities recognize that some services require attention to physical, mental,
and spiritual needs. Addiction treatment programs that involve 12-step programs
have a distinctive spiritual component, involving recognition of a higher power. In
such programs as well as in marriage and family counseling, grief ministries, and
other services it is appropriate and necessary to recognize and respond to the physical,
mental, and spiritual needs of those whom Catholic Charities serve.
Catholic Charities have a special relationship to the Catholic diocese and to Catholic
parishes within the diocese. Catholic Charities agencies often have formal programs
which support and encourage Roman Catholic parishes in their ministry to the
community and its needs, assisting parishioners in the exercise of their baptismal
commitment to the poor and needy.
Catholic Charities work in active partnership with religiously sponsored charities and
the civic community, reflecting the teaching of the Second Vatican Council, as
Catholics are mandated as well as willing to work hand-in-hand with other religions
and other people of good will to serve the needs of the larger civic community.
Catholic Charities support an active public-private partnership with government at all
levels. The Church has a long and strong tradition of teaching about the
responsibilities of government in promoting the common good and protecting the
least among us. Catholics are also charged with a responsibility to support their roles
as citizens and taxpayers and to actively participate in civic life. These teachings
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have impelled and authorized Catholics to seek out and accept partnerships with
cities, counties, states, and the federal government to facilitate and insure the
provision of needed services for the wider community that are judged to be consistent
with the Churchs own mission. These relationships are sometimes contractual
relationships, as between plaintiffs and DCFS, to deliver particular services such as
adoption and foster care application processing, placements and related services.
They also may involve voucher payments from the government, such as Medicaid, or
government funding of construction, such as housing. The Church provides
additional funding, volunteers, efficiency, values, community credibility, anddedication to service for the benefit of local communities and their needy families.
Catholic Charities blend advocacy for those in need and public education about social
justice with service to vulnerable and needy individuals, families, and communities.
Consistent with its special concern for the poorest and most vulnerable human beings
among us, over the last century the Church has been increasingly outspoken about the
need for economic and political change. Following the lead of the Vatican and the
U.S. bishops, Catholic Charities have made working for a more just society an
integral part of understanding their mission of service.
37. Nor could plaintiffs observance of their conscientious religious obligations be
held, in any event, to violate any provision of the Religious Freedom Protection & Civil Union
Act. The core protection embodied in the new statute is set forth at Section 20 thereof, whichprovides:
Section 20. Protections, obligations, and responsibilities. A party to a civilunion is entitled to the same legal obligations, responsibilities, protections, andbenefits as are afforded or recognized by the law of Illinois to spouses, whetherthey derive from statute, administrative rule, policy, common law, or any other
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source of civil or criminal law.
Catholic Charities religiously grounded practice of declining to entertain or process applications
for foster care or adoption on the part of unmarried same sex or heterosexual cohabiting couples,
together with defendants options to refer such applicants to other agencies willing and able to
accommodate them, does not even remotely deny any legal benefit to a civil union couple
that would be available to a married couple, let alone effect such a denial by statute,
administrative rule, policy, common law, or any other source of civil or criminal law. Couples
in civil unions same sex or opposite sex remain perfectly free to contact and obtain all
relevant services from other adoption or foster care agencies or to make private adoptionarrangements, all without the slightest interference of obstruction on the part of plaintiffs or any
hindrance arising as a matter of law. Thus there is no underlying predicate for any application of
the new Religious Freedom Protection and Civil Union Act against plaintiffs, even if plaintiffs
were not deemed exempt as provided on the face of the Act itself, and also as recited in the
statutes own text.
WHEREFORE, pursuant to Count II, plaintiffs pray that the Court issue a declaratory
judgment to the effect that plaintiffs assertion of their conscientious religious objections,
together with defendants capacity for referral of same sex or unmarried cohabiting couples to
other agencies which do not share plaintiffs religious objections and may provide all requested
social services in connection with adoption or foster care, does not deny any unmarried
cohabiting same sex or heterosexual couple any legal benefit whatsoever; that plaintiffs are not
covered by the new Religious Freedom Protection & Civil Union Act, but exempted by its text,
as confirmed by its legislative history; and that the Court grant plaintiffs all other relief to which
they may be entitled on the premises pursuant to Count II hereof.
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COUNT III(Declaratory Judgment Claim Under The Illinois Religious Freedom Restoration
Act, 775 ILCS 35/1 et seq )
1-39. Plaintiffs hereby repeat and re-allege each and every allegation contained in
paragraphs 1 through 39 inclusive of Count II hereof with the same force and effect as if fully set
forth herein.
40. The Illinois Religious Freedom Restoration Act, 775 ILCS 35/1 et seq. was
enacted in reaction to the U.S. Supreme Court decisions in Employment Division v. Smith, 494
U.S. 872 (1990), which articulated a narrow, compound test for evaluation of constitutional
claims asserting infringements of the First Amendment freedom to exercise ones religious faith,and in City of Boerne v. Flores, 521 U.S. 507 (1997), which struck down an attempt by Congress
to overrule Smith by legislation. Both of these U.S. Supreme Court cases are referenced in the
findings and purposes of the Illinois Religious Freedom Restoration Act, supra , 775 ILCS
35/10(a)(4),(5).
41. Section 15 of the Religious Freedom Restoration Act, 775 ILCS 35/15, provides
as follows:
Government may not substantially burden a persons exercise of religion, evenif the burden results from a rule of general applicability, unless it demonstratesthat application of the burden to the person (i) is in furtherance of a compellinggovernmental interest and (ii) is the least restrictive means of furthering thatcompelling interest.
42. Exercise of religion is defined in turn to mean an act or refusal to act that is
substantially motivated by religious belief, whether or not the religious exercise is compulsory or
central to a larger system of religious belief. 775 ILCS 35/5. And government includes a
branch, department, agency, instrumentality, and official (or other person acting under color of
law) of the State of Illinois or a political subdivision of the State, including a home rule unit.
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exclusive remedy for anyone in Illinois who claims to be a victim of discrimination, and as
shown supra (Count I) it affords no remedy at all to those allegedly aggrieved by acts or
omissions of sectarian adoption agencies, such as plaintiffs. Indeed, the ringing declarations of
Illinois public policy bound up in the free exercise of religion clause of the Illinois Constitution,
Article I, Section 3, must be taken into consideration and at very least deemed a powerful
counterweight to any facile assertion that Illinois law somehow dictates it a compelling interest
to coerce its citizens under penalty of law to disregard their own sincere, deeply held,
conscientious religious objections to what they deem immoral.
46. Nor could the defendants argue that there is a compelling interest in suppressingplaintiffs rights to pursue their religious practice by urging that serious harm would flow from
plaintiffs declining to process adoption or foster care applications, etc. when defendants
command a host of options for referral of those applicants to other social service agencies which
provide foster care or adoption services whether those other social services agencies are
sectarian or not and which are willing to accept and process such applications. Indeed,
defendants undisputed capacity for making such referrals represents the least restrictive
alternative to placing such a substantial burden on plaintiffs free exercise of religion. Referral
to other providers would assure the proper and adequate handling of everybodys applications,
while not trampling on plaintiffs conscientious objections and permitting plaintiffs to continue
to practice their religious faith through social ministry within our religiously pluralistic
democracy.
47. Still another factor should be weighed in arriving at an accurate and proper
interpretation of the Illinois Religious Freedom Restoration Act. Statutes should be construed so
as not to yield untoward or absurd results. Yet, Federal Executive Order No. 13559, dated
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November 17, 2010, a copy of which is appended hereto as Exhibit C, was promulgated by the
Obama Administration as a modification of a predecessor Executive Order, dated December 16,
2002, promulgated during the Bush Administration. The 2010 Executive Order recites in
Section 2 thereof (Exh. C, pp. 1-3) ten Fundamental Principles for the implementation of
policies that have implications for faith-based agencies that administer social service
programs or that support (through prime awards or sub-awards) social services programs with
Federal financial assistance. These Fundamental Principles support use of faith-based
social service agencies, such as plaintiffs ( id., sub(b)). Also, they ban discrimination on the
basis of religion or religious belief in the administration or distribution of Federal financialassistance under social service programs ( id. , sub(c)). Finally, the Fundamental Principles
mandate that [e]ach agency responsible for administering or awarding Federal financial
assistance for social service programs shall offer protections for beneficiaries of such programs
by, inter alia , providing for Referral to an Alternate Provider, so that whenever a beneficiary
or prospective beneficiary of a social service program supported by Federal financial assistance
objects to the religious character of an organization that provides services under the program,
that organization shall, within a reasonable time after the date of the objections, refer the
beneficiary to an alternate provider. While plaintiffs do not purport to invoke these principles
as any cause of action herein, as the Executive Order explicitly disclaims that it creates any
right or benefit, substantive or procedural, enforceable at law or in equity, by any party,
plaintiffs do allege that their state funding, which defrays only part of their financial burden in
providing foster care and adoption services, is largely derived from federal grants. Thus those
federal funds should be administered in a manner that assures the availability of the very referral
procedures which plaintiffs have been providing to prospective beneficiaries of their foster
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care or adoption services over their decades-long partnership with the defendant, DCFS.
Plaintiffs further allege, therefore, that the Illinois General Assembly could hardly have intended
to flout these Federal guidelines for the administration and distribution of Federal financial
assistance, by discriminating against plaintiffs denying plaintiffs referral options to
accommodate their conscientious objections while providing referral options to beneficiaries or
prospective beneficiaries who object to plaintiffs religious character. Such patent discrimination
against plaintiffs, moreover, would constitute a gross affront to the religious liberty guarantees in
the Illinois Constitution. The avoidance canon of statutory interpretation, therefore, would also
militate in favor of reading the Religious Freedom Protection and Civil Union Act, together withthe Illinois Religious Freedom Restoration Act, to require that plaintiffs be guaranteed a legal
right to opt out of processing foster care or adoption applications against which plaintiffs have
deep-seated religion-based conscientious objections, lest the newly effective Act be struck down
as unconstitutional.
WHEREFORE, pursuant to Count III, plaintiffs pray that the Court issue a declaratory
judgment to the effect that, in the event the Illinois Human Rights Act proscriptions that apply to
places of public accommodation are held to apply to plaintiffs and/or the Religious Freedom
Protection & Civil Union Act is held applicable to plaintiffs, plaintiffs statutorily protected
exercise of religion would be substantially burdened by a reading of the Illinois Human Rights
Act that would force them to process applications for foster care or adoption from unmarried
couples, regardless of their sexual orientation, or a reading of the new Religious Freedom
Protection & Civil Union Act to apply to them and restrict their religious practice, for which
there is no compelling governmental interest, and that defendants many options for referral of
such applicants to other adoption agencies willing to entertain and process their applications
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represent the least restrictive alternative to burdening plaintiffs exercise of their religious faith,
pursuant to the Illinois Religious Freedom Restoration Act; that the defendants effort to coerce
defendants into going against their conscientious religious scruples and commitments would
constitute a violation of the Religious Freedom Restoration Act; and that plaintiffs be granted
all other relief, pursuant to Count III hereof, to which they may be entitled on the premises, and
pursuant to said Act.
COUNT IV(Claim For Illinois