Same-Sex Couple Blocked from Serving as Foster Parents to Get Their Day in Court

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June 13, 2019

Late yesterday, a federal district court denied motions by the U.S. Department of Health and Human Services (HHS) and the U.S. Conference of Catholic Bishops (USCCB) to dismiss Lambda Legal’s lawsuit challenging discrimination in a federal foster care program. Lambda Legal filed the lawsuit on behalf of a married same-sex Texas couple, Fatma Marouf and Bryn Esplin, who were denied the opportunity even to apply to serve as foster parents for refugee children by a USCCB affiliate because the couple did not “mirror the Holy Family.”

“It was so shocking and hurtful to be told that we don't qualify to foster refugee children because of who we are and who we love,” said Fatma Marouf. “We look forward to telling our story in court and working to ensure that children receive the loving homes they deserve, and that same-sex couples receive the respect and dignity owed to us under the Constitution,” added Bryn Esplin.

“We are delighted that the court properly determined that Fatma and Bryn deserve their right and opportunity to tell their story in court,” Lambda Legal Senior Attorney Jamie Gliksberg said. “HHS tried to have it both ways, to provide funding to an organization – USCCB -- that it knew would discriminate based on the organization’s own religious beliefs, and then to claim it can’t be held responsible for that discrimination when it occurred. Thankfully, the court saw through the smokescreen.”

HHS funds the program that turned away Marouf and Esplin exclusively with federal taxpayer money through its Office of Refugee Resettlement (ORR). Specifically, HHS and ORR 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.

“The court held that it was a matter of public record that USCCB and its affiliates would not place children with same-sex couples,” Gliksberg added. “USCCB even stated in its grant applications that it would provide services using federal funds in accordance with its religious beliefs. HHS knew this and funded USCCB anyway. There should be only one criterion for placing foster children – what is in the best interests of the child. Placing children with stable, loving homes such as Fatma and Bryn’s should be at the top of the list.”

In addition to allowing Fatma and Bryn’s claims to move forward, the court dismissed a third plaintiff from the case, the National LGBT Bar Association, holding that the members of the National LGBT Bar Association could not challenge the particular funding scheme in this case based solely on their status as taxpayers.

Lambda Legal filed the lawsuit in February 2018 in the U.S. District Court for the District of Columbia. The lawsuit claims HHS is violating the Establishment, Equal Protection and Due Process Clauses of the U.S Constitution by authorizing USCCB to discriminate on the basis of the organization’s religious beliefs in its provision of federal child welfare services. Last month, Lambda Legal together with the ACLU and ACLU of South Carolina filed a separate lawsuit against HHS on behalf of a South Carolina same-sex couple similarly denied the opportunity to serve as foster parents because the government-funded private placement agency was granted a waiver by HHS to apply a particular religious filter to potential foster parents.

Today, the court ruled to deny the motion to dismiss as to Bryn and Fatma and their case will proceed on each of their constitutional claims.

USCCB, which receives millions of dollars in grant funding from HHS through ORR to assist with the federal government’s Unaccompanied Refugee Minors (URM) and Unaccompanied Alien Child (“UC”) programs, 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 more than four 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, they decided that they wanted to become foster parents for a refugee child and asked to start the licensing process.

However, when Bryn and Fatma first 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 in the organization’s care, the Director stated that none of the unaccompanied refugee children in its care were LGBT. Later that same day, Fatma emailed ORR to inform it that the USCCB affiliate had discriminated against her and her same-sex spouse by refusing to allow them to apply to foster a refugee child. ORR responded two months later to ask for the names of the officials with whom they met and Fatma and Bryn responded immediately with the requested information, but they have heard nothing since.

The Lambda Legal attorneys working on the case are: Camilla B. Taylor, and Jamie Gliksberg. They are joined by pro-bono co-counsel Ken Choe, Jessica L. Ellsworth, Jennifer A. Fleury, and James A. Huang of Hogan Lovells, and Kenneth D. Upton, Jr. of Americans United for Separation of Church and State.