Lambda Legal Sues HHS after Same-Sex Couple Blocked from Serving as Foster Parents

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February 20, 2018

Lambda Legal today filed a federal lawsuit against the U.S. Department of Health and Human Services (HHS) and the U.S. Conference of Catholic Bishops (USCCB) on behalf of a couple who were denied the opportunity even to apply to serve as foster parents for refugee children by a USCCB affiliate because, they were told, they did not “mirror the Holy Family.”

HHS funds the program that turned away Fatma Marouf and Bryn Esplin, a married same-sex couple, exclusively with taxpayer money. HHS funded USCCB to perform federal child welfare services through its affiliates even though USCCB made clear that it would use the funds to deny such services to members of the public based on USCCB’s religious beliefs.

“Being denied the opportunity to foster a child because we don’t “mirror the Holy Family’ – clearly code for being a same-sex couple – was hurtful and insulting to us. More than that, though, insisting on such a narrow, religious view of what a family must look like deprives these children of a nurturing, supportive home," said Esplin. 

“Refugee children have been through enough trauma to last a lifetime," Marouf said. "They need love, stability, and support, which Bryn and I have in abundance. But in discriminating against us, the agency put their religious views of LGBT people above what is best for the kids in their care.”

“The federal government was on notice when it funded USCCB that this organization refuses to provide services to same-sex spouses at taxpayer expense,” Lambda Legal Senior Counsel Kenneth D. Upton said. “Our government should not be favoring certain religious beliefs over others—to the tune of millions of dollars—and turning people away from government services based on their failure to conform to the dictates of a particular religious belief."

"This type of government-funded discrimination is not just coercive—it’s heartbreaking to Fatma and Bryn, and other loving couples denied their dream of bringing a child into their home, and hurts children in federal foster care programs denied loving families," Upton added. "USCCB’s sole criterion for placing the children in its care should be the best interests of the children.”

Lambda Legal filed the lawsuit today in U.S. District Court for the District of Columbia on behalf of Marouf and Esplin. The lawsuit claims HHS and USCCB are violating the Establishment, Equal Protection and Due Process Clauses of the U.S Constitution by allowing USCCB to impose a religious test governing the provision of federal child welfare services.

Lambda Legal clients Bryn Esplin and Fatma Marouf.

USCCB, which receives millions of dollars in grant funding from HHS through the Office of Refugee Resettlement (ORR) to assist with the federal government’s Unaccompanied Refugee Minors (URM) Program and the Unaccompanied Alien Child (“UC”) Program, is responsible for identifying eligible children in need of services, and providing foster care services for these children, including placement in homes that serve their best interests.

Fatma Marouf and Bryn Esplin have been married for nearly three years. They both teach at Texas A&M University; Fatma is a Professor of Law and Director of Texas A&M’s Immigrant Rights Clinic, and Bryn is an Assistant Professor of Bioethics at Texas A&M College of Medicine. They have long wanted to have children, and, after administrators at a Fort Worth-based USCCB affiliate invited Fatma to visit and learn about the affiliate’s work with unaccompanied refugee children, decided they wanted to become foster parents for a refugee child and asked to start the licensing process.

However, when in their first interview they revealed that they were a married same-sex couple, the affiliate’s Director of International Foster Care informed them that they would not be permitted to apply to be foster parents because their family structure did not “mirror the Holy Family.” And, when Fatma asked about LGBT refugee children, the Director stated that none of the roughly 700 unaccompanied refugee children in their care were LGBT.

Later that same day, Fatma emailed ORR to say that the USCCB affiliate had discriminated against her and her same-sex spouse by refusing to allow her to apply to foster a refugee child. ORR responded two months later to ask for the names of the officials with whom they met, but Fatma and Bryn have heard nothing since.