Metro Weekly

Court refuses to dismiss lesbian couple’s lawsuit alleging foster care discrimination

Lawsuit alleges HHS knowingly allowed Catholic entities to receive federal grants while discriminating against same-sex couples

Fatma Marouf and Bryn Esplin – Photo: Lambda Legal.

A lesbian couple will have their day in court after the Trump administration denied them the chance to serve as foster parents to refugee children.

A federal judge has refused to dismiss the couple’s lawsuit against the Department of Health and Human Services alleging that they were discriminated against because of their sexual orientation.

On June 13, U.S. District Court Judge Amit Mehta of the District of Columbia denied motions brought by HHS and the U.S. Conference of Catholic Bishops, which administers the government program, asking the court to dismiss the lawsuit from Texas couple Fatma Marouf and Bryn Esplin.

According to their complaint, the couple alleges they were denied the chance to even apply to serve as foster parents 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,” Marouf said in a statement following the court’s decision.

Esplin added: “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.”

The couple’s lawyer, Lambda Legal Senior Attorney Jamie Gliksberg, celebrated Judge Mehta’s ruling allowing the lawsuit to proceed through the normal judicial process.

“We are delighted that the court properly determined that Fatma and Bryn deserve their right and opportunity to tell their story in court,” Gliksberg said in a statement. “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.”

Marouf, who is Mulsim, and Esplin, who is Mormon, have been married for three years and both teach at Texas A&M University.

They have long wanted to have children and even attempted to conceive through reproductive technology. Their attempts were unsuccessful, and the couple began considering other options, including adoption and foster care.

After Marouf, the director of the Immigrant Rights Clinic at Texas A&M’s Law School, was invited by Catholic Charities of Fort Worth to learn about the organization’s work with an HHS-funded program allowing Americans to serve as foster parents to unaccompanied refugee minors and unaccompanied alien children.

The program is administered by the U.S. Conference of Catholic Bishops, which receives millions of dollars in government grants to identify eligible children and place them in homes that serve their best interests.

However, when Marouf and Esplin revealed they were a married same-sex couple, the director of international foster care at Catholic Charities of Fort Worth — a USCCB affiliate — told them they would not be allowed to apply because of objections to their family structure.

When Marouf asked about fostering LGBTQ-identifying children in the organization’s care, the director stated that none of the refugee children in its care were LGBTQ.

Marouf then emailed the Office of Refugee Resettlement, which oversees the HHS-funded foster care program, to inform it that she and her spouse had been discriminated against.

ORR responded two months later to ask for the names of the officials with whom the couple had met and Marouf responded immediately with the requested information, but ORR has not contacted Marouf or Esplin since.

Enlisting the help of Lambda Legal, Marouf and Esplin filed a lawsuit against HHS for violating their constitutional rights under the First, Fifth and Fourteenth Amendments of the U.S. Constitution by authorizing USCCB to discriminate in foster care placement on the basis of its religious beliefs in its provision of federal child welfare services.

After hearing oral arguments in December 2018, Mehta found in his decision issued last Thursday that it was a matter of public record that USCCB and its affiliates would not place refugee children with same-sex couples, with USCCB even stating in its grant applications seeking federal government funding that it would only place children with foster parents based on its personal beliefs. But HHS continued to funnel money to USCCB anyway. 

“There should be only one criterion for placing foster children — what is in the best interests of the child,” Gliksberg added. “Placing children with stable, loving homes such as Fatma and Bryn’s should be at the top of the list.”

Mehta also dismissed a third plaintiff, the National LGBT Bar Association, ruling that the members of the organization could not challenge the USCCB funding scheme based solely on their status as taxpayers, thought Marouf and Esplin could continue their challenge as individuals.

Lambda Legal is currently suing HHS in another matter involving a South Carolina same-sex couple who was denied the chance to serve as foster parents because the government-funded private placement agency was granted a waiver allowing them to discriminate against same-sex couples and other prospective parents whose lifestyle or religious beliefs the agency found personally or morally objectionable.

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