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Fatma Marouf and Bryn Esplin from the cover story of the Fort Worth Weekly March 21, 2018.

The federal government didn’t discriminate against a same-sex married couple. Instead, the feds only funded the bigotry that blocked Fatma Marouf and Bryn Esplin from fostering a refugee child.

That’s the gist of the motion to dismiss filed by the U.S. Department of Health and Human Services (HHS) in response to the lawsuit filed in February by the women, whose petition alleges discrimination through violations of the U.S. Constitution, specifically the Establishment Clause under the First Amendment and the Fifth Amendment’s Equal Protection Clause and Due Process Clause. The women say they were unfairly denied the right to foster a refugee boy or girl by Catholic Charities of Fort Worth (CCFW) because as a lesbian couple Marouf and Esplin do not “mirror the holy family,” in the CCFW’s words.

The Fort Worth residents are hoping the courts will force the federal government to stop using taxpayer money to fund discrimination that Marouf and Esplin say stigmatizes and demeans applicants who are lesbian, gay, bisexual, or transgender who are seeking to adopt or foster children. Marouf and Esplin sued HHS and its secretary, Alex Azar, as well as the Administration for Children and Families and the Office of Refugee Resettlement (ORR) – agencies that are under the HHS umbrella. Although the women did not sue CCFW, their lawsuit does include the U.S. Conference of Catholic Bishops, a national organization that receives millions each year from the federal government to operate adoption and fostering programs through sub-grantees that include CCFW. Last year, the bishops’ conference received $39 million in grant funds to dole out.

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Marouf and Esplin are seeking “nominal” monetary damages, which means $1 (“A Poor Reflection,” March 21). Such awards are symbolic and meant to validate that the person or persons who brought the lawsuit were wronged.

Aside from one of them not having the body parts that CCFW requires for couples who want to parent, Marouf and Esplin appear otherwise qualified. Marouf, the daughter of immigrants, is a law professor and the director of the Immigration Rights Clinic at the Texas A&M University School of Law in Fort Worth. Marouf and her students, along with other advocates, recently sparked a federal probe (“Meltdown,” May 9) when they spoke out on behalf of 80 African men who were allegedly targeted for racially motivated abuses at the West Texas Detention Facility. The law professor has been busy lately providing legal assistance to immigrant families who were separated at the U.S.-Mexico border by the Trump administration.

Esplin teaches bioethics at Texas A&M’s School of Medicine and is immensely proud of her wife. The women are eager to expand their family by opening their home to a child.

Court documents detail the couple’s rejection by Donna Springer, CCFW executive committee chair, which occurred during a phone conference in February 2017. After hanging up with Springer that day, Marouf emailed the ORR to report the discrimination. When a year passed and the feds did nothing, Marouf and Esplin sued. They are represented by Lambda Legal Defense and Education Fund, a nonprofit firm that specializes in LGBT cases.

Lambda lawyer Jamie Gliksberg said that, to her knowledge, Marouf and Esplin’s legal challenge is the first federal lawsuit of its kind in the context of child welfare. If the women prevail in court, she said, HHS will have to require that the agencies it contracts with and funds through taxpayer dollars stop imposing their beliefs on others and “using religious criteria to determine who can and cannot be a parent.” 

Motions to dismiss the lawsuit were recently filed by HHS and the bishops’ conference on the same day in the U.S. District Court for the District of Columbia. Marouf said the case has been assigned to U.S. District Court Judge Amit P. Metha. The government is claiming sovereign immunity and, Gliksberg said, is “trying to avoid responsibility here by saying that it wasn’t [the federal government] who did the discrimination” but CCFW.

The law firm filed a response to the defendants’ motions a few weeks ago, rebutting HHS’ and the bishops’ conference’s reasons as to why the lawsuit should be tossed. One of the main points made in the rebuttal is that, regardless of whether CCFW is a third party, the federal government should not be funding organizations that discriminate against its citizens.

“We’re challenging the government’s actions and [saying] that the government funded the discrimination knowingly,” Gliksberg said. “It entered into a grant agreement with [the bishops’ conference] knowing that [the bishops’ conference] intended to [discriminate] on the basis of Catholic doctrine. [The federal government] provided no safeguards to ensure that Catholic doctrine wasn’t used to discriminate against potential foster parents” such as Marouf and Esplin.

By allowing the national Catholic group and its sub-grantees to reject those whose views do not align with the organization’s own, the government is favoring one religion over another, Gliksberg said. Not only that, by rejecting same-sex couples who have the ability to offer stable, loving care, the Catholic organizations are failing to act in the best interest of the children entrusted to them, she said. Instead, she said, refugee kids are allegedly being warehoused in “crowded facilities, literally sleeping under desks.”

The motion filed by the bishops’ conference argues that they have received grant funding for years “during several different presidential administrations” and have “long made the government aware” that they “cannot provide services that would violate [their] religious beliefs.”

Marouf and Esplin are having none of it.

Their rebuttal states that, despite the defendants’ attempts to classify the lawsuit as “a threat to critical services for vulnerable children,” Marouf and Esplin are only seeking to force the government to administer grant programs in a manner that is in the best interest of children and that doesn’t reject options that include same-sex couples.

Gliksberg and her clients are especially concerned that refugee kids who are LGBT are not being protected under the government’s umbrella.

“Under Federal Defendant’s administration of the grants, LGBT children in particular suffer as their needs and best interest go unrecognized and ignored in service of” the bishops’ conference’s religious doctrine, Marouf and Esplin state in a recently filed memorandum.

It also says that they would not object to the bishops’ conference’s religious beliefs being accommodated as long as LGBT rights are respected as well. How that is accomplished, though, isn’t for Marouf and Esplin to figure out, their lawyer said.

“That is a question for the federal government and [the bishops’ conference] to work out,” Gliksberg said. “How they execute their contract involves countless processes that only they design and control. We will certainly explore that question in discovery, but the question first should be answered by the federal government and [the bishops’ conference] since they know the process better than we do.” 

The battle for LGBT rights has grown fiercer in the Trump era and under a Republican-controlled Congress. Last week, the House Appropriations Committee voted along party lines to pass an amendment allowing taxpayer-funded adoption agencies to refuse LGBT families the ability to adopt a child based on religious beliefs. The amendment, tacked onto a funding bill for three departments –– labor, health and human services, and education –– also forces the federal government to work with adoption agencies that select and reject applicants based on religious criteria.

Gliksberg said the reform is the government’s attempt to use religious freedom as a right to discriminate.

“People need to understand that this amendment does not only affect LGBT people,” she said. “It could have broad, sweeping effects and could be used to justify discrimination against anyone, from single parents to prospective parents who do not share in the organization’s faith.”

Gliksberg said that CCFW is the only program in the area that offers the opportunity to foster refugee children, so it’s not as if Marouf and Esplin have other options. 

For now, all involved must wait on the judge to determine whether he will allow the case to move forward. It is possible that there could be oral arguments on the motions to dismiss, but Gliksberg doubts it. She said last week that she has no idea when the judge’s decision will come down.

If the case proceeds, Marouf and Esplin will be able to obtain relevant documents and depositions as part of the discovery process in preparation for bringing the case to trial, Gliksberg said.

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