catholic social services of southern illinois joins catholic charities lawsuit to continue to serve...

8/6/2019 Catholic Social Services of Southern Illinois Joins Catholic Charities Lawsuit to Continue to Serve Childrens Best Inte

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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 )



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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 )


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

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