Americans United and Lambda Legal: Victory For Woman Rejected By Federally Funded Foster Care Agency Because She Is A Lesbian

Americans United for Separation of Church and State and Lambda Legal, together with the law firm Orrick, Herrington & Sutcliffe LLP, today declared victory on behalf of Kelly Easter, an East Nashville, Tenn., woman who for more than two years had been denied the opportunity to foster refugee children through a federally funded program solely because she is a lesbian. After she filed a federal lawsuit, Easter v. HHS, the taxpayer-funded agency involved – the U.S. Conference of Catholic Bishops (USCCB) – told the federal government it no longer has a religious objection to working with a single lesbian foster parent and has allowed Easter the opportunity to provide a safe and loving home for refugee children.

Because Easter is now being allowed to participate in the program through the U.S. Office of Refugee Resettlement (ORR), she is voluntarily dismissing her case for the time being against the U.S. Department of Health and Human Services and several HHS officials in the U.S. District Court for the District of Columbia.

Camilla Taylor, deputy legal director for litigation at Lambda Legal: “The federally funded child welfare agency finally has allowed Kelly to apply to foster a refugee child, and she is in the process of becoming licensed. While we are glad that Kelly is now permitted to participate in a federal program and a refugee child may find a loving home with her, it is a shame that USCCB and ORR fenced her out for almost two years, and required her to file a lawsuit before determining that USCCB’s religious objections to her identity were flexible. Two years is a long time for a refugee child without a loving home. Congratulations to Kelly for overcoming discriminatory obstacles, and for her tenacity in pursuing her dream of providing a safe and loving home for a child in need.” 

Rachel Laser, president and CEO of Americans United: “This is a win for religious freedom, Kelly Easter and the vulnerable refugee children she’ll now be able to help. But it’s a victory that should not have taken two years to achieve. The federal government should never allow a taxpayer-funded agency to discriminate against prospective foster parents because they don’t live according to its religious beliefs. Our laws cannot allow anyone to use their religious beliefs to harm others, and especially not vulnerable children and the commendable people like Kelly who want to help them.”

Plaintiff Kelly Easter: “Providing a loving, nurturing home for a refugee child is my desire. All qualified individuals, regardless of their sexual orientation, should be encouraged to adopt, so these children may receive the best possible chance at finding a stable home. This is what I’ve wanted all along.”   

While this is a victory for Easter, it’s only a partial win in the fight to ensure the federal government does not continue to sanction or enable discrimination against prospective LGBTQ foster parents by organizations that receive taxpayer funds to care for unaccompanied refugee children. USCCB’s policy may now permit single LGBTQ parents to foster children, but the agency still discriminates against married same-sex couples like Fatma Marouf and Bryn Esplin. The couple was rejected by a USCCB sub-grantee in Texas because, as a married same-sex couple, they didn’t “mirror the Holy Family” as the agency requires. Lambda Legal and Americans United also represent Marouf and Esplin in the federal lawsuit Marouf v. HHS.

Case Background:

The Easter v. HHS lawsuit was filed in October 2021 against the U.S. Department of Health and Human Services, along with several HHS officials and programs.

Kelly Easter wishes to become a foster parent for a child in a federal foster care program for immigrant children. Her 2020 inquiry to the U.S. Office of Refugee Resettlement (ORR) was directed to the only entity participating in the program in her area: Bethany Christian Services, a sub-grantee of the USCCB, which receives federal funds to provide foster care services. Bethany refused to permit Easter to apply to be a foster parent solely because she is a lesbian.

Easter reported this discrimination to ORR. When Bethany’s national leadership announced in 2021 that it had changed its policy and would now accept LGBTQ families, Easter again attempted to apply. However, a representative from Bethany informed her that she still would not be permitted to apply to the program near her home because Bethany operates that program as a sub-grantee of USCCB, which continued to exclude LGBTQ foster parent applicants from participation. In late February  2022, USCCB informed the federal government that Easter’s exclusion had all been a misunderstanding and it will now work with single LGBTQ foster parents.

For years the federal government had known that USCCB discriminates and requires its sub-grantees to discriminate against LGBTQ foster parent applicants, reducing the number of available homes for children in need, and sending a damaging message to LGBTQ adults and children alike that there is something wrong with their families. Yet HHS officials continue to enable and sanction this discrimination against married, same-sex couples. 

In addition to the U.S. Dept. of Health and Human Services, also named as defendants in Easter v. HHS were ORR and the Administration for Children and Families, as well as HHS Secretary Xavier Becerra, ACF Acting Assistant Secretary Jooyeun Chang and ORR Director Cindy Huang.

The legal team representing Kelly Easter includes, at Lambda Legal, Camilla B. Taylor, Karen L. Loewy and M. Currey Cook; at Americans United, Richard B. Katskee and Kenneth D. Upton, Jr.; and at Orrick, Herrington & Sutcliffe LLP, Seth Harrington, Daniel A. Rubens and Andrew D. Silverman.