Lambda Legal and Americans United Reject Government Attempt to Duck LGBT Nondiscrimination Obligations

Late yesterday, Lambda Legal and Americans United for Separation of Church and State opposed an effort by the U.S. Government to put their lawsuit on behalf of Fatma Marouf and Bryn Esplin on hold indefinitely based on the U.S. Government’s assertion that it was intending to change its relationship with the United States Conference of Catholic Bishops (USCCB) at some unspecified time in the future.

The U.S. Department of Justice filed a motion last week in Marouf v. Becerra, a federal lawsuit challenging discrimination against LGBT prospective parents in the federally funded Unaccompanied Refugee Minors (URM) and Unaccompanied Alien Child (UC) programs. The motion, which requests that the judge suspend the litigation, proposes that the federal government will contract with and fund a “third-party entity” whose sole responsibility will be to identify and segregate LGBT foster parent applicants in the Dallas-Fort Worth area, and direct them away from USCCB’s sub-grantee to an alternative provider of federal child welfare services that purportedly would be willing to accept their applications. Under such a scheme, children in USCCB’s care would remain unavailable for placement in the homes of LGBT foster parents who might serve their best interest. LGBT prospective foster parents would remain fenced out of participation in federal programs delegated to USCCB.

“This proposal doubles down on the discrimination and harm caused when the federal government first sanctioned and enabled USCCB’s refusal to allow Fatma and Bryn to apply to foster a refugee child in February, 2017. Years later, federal defendants now propose at the 11^th hour to outsource the segregation of LGBT applicants to a third party as though this washes their hands of their responsibility to treat applicants fairly and without discrimination. Children in refugee camps or in group foster care settings deserve the chance to be considered for placement in the homes that best serve their individualized needs, without the categorical exclusion of certain families based on factors that have nothing to do with their ability to provide a safe and loving home,” said Deputy Director for Litigation for Lambda Legal, Camilla B. Taylor.

“After years of watching HHS favor discrimination against LGBTQ people in various programs, we had high hopes that the new administration would correct course and right this ship—guided by constitutional principles of freedom without favor and equality without exception. The government’s insistence on clinging to a religious litmus test is not only deeply disappointing, but also should trouble anyone who cares about the welfare of vulnerable children entrusted to government care,” added Kenneth Upton, Senior Litigation Counsel for Americans United.

Background

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, has been delegated the government function of  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 LGBTQ. 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 lawsuit is Marouf v. Becerra (formerly Marouf v. Azar). Read Plaintiff’s Response in Opposition to Federal Defendants’ Motion to Stay Summary Judgment Deadlines here: https://www.lambdalegal.org/in-court/legal-docs/marouf_us_20211116_plaintiff-response-opposition-federal-defendant-motion-stay

Read about the case here: https://www.lambdalegal.org/in-court/cases/marouf-v-azar.

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