Lesbian couple sues feds for thwarting their chance to foster refugee children

Three years ago, as they wore long gowns and exchanged vows surrounded by people who love them, Fatma Marouf and Bryn Esplin imagined a growing family. But like so many couples who dream of having children, they keep hitting roadblocks.

They tried IVF treatments and had no luck. They would have liked to adopt domestically, but state-funded agencies in Texas, where they live, are free to exclude same-sex couples. They say they can’t afford the tens of thousands of dollars it takes to adopt privately.

So early last year, they turned their attention to the idea of fostering refugee children. They were sure they had found their answer. They didn’t get far, though, before they were proved wrong.

During an informational phone call with the organization in charge, Catholic Charities of Fort Worth, they say, they were told that same-sex couples are ineligible to apply because they don’t “mirror the Holy Family.”

Marouf and Esplin, both professors at Texas A&M University, were stunned. This obstacle felt “particularly hurtful,” they said. Marouf, a law professor, fired off an email to the Office of Refugee Resettlement to ask whether this was legal. (She’s still waiting for the office’s answer.) They began grieving for the life they wanted but couldn’t have. They ached for older kids, the very kind they were happy to take, who would probably be left in the system.

All those feelings have now fueled a lawsuit against the federal government. The complaint was filed this week in Washington’s U.S. District Court by Lambda Legal, which defends the rights of the LGBTQ community.

“We’re private people. We didn’t go looking for this,” said Esplin, 33, an assistant professor of bioethics.

Fatma Marouf, left, and Bryn Esplin vacation in Paris.

It was this slap of reality that compelled them to act.

“Refugee children have been through enough trauma to last a lifetime,” said Marouf, 41, who also directs Texas A&M’s Immigrant Rights Clinic and knows too well what they’re up against. “They need love, stability and support, which Bryn and I have in abundance. But in discriminating against us, the agency put their religious views of LGBT people above what is best for the kids in their care.”

What drives this case

At the heart of their legal complaint is the financial story behind Catholic Charities of Fort Worth. It is the only organization the couple and their lawyers know of in their area that places refugee children in homes, and it is supported by taxpayers. Its child welfare work is funded by the United States Conference of Catholic Bishops (known as USCCB), the plaintiffs’ lawyer explains, which receives millions of dollars in grant money to help two federal government programs: one for unaccompanied refugee minors and the other for unaccompanied alien children. All that grant money is distributed by the Department of Health and Human Services through the Office of Refugee Resettlement – which is why various government entities, including HHS, are named in the lawsuit along with the overarching Catholic organization, USCCB.

Using Catholic doctrine to dictate foster parent eligibility violates constitutional protections, said Jamie Gliksberg, a Lambda Legal staff attorney who is working on their case.

'No differences' between children of same-sex and opposite-sex parents

“Our clients should be able to walk into any agency and be treated equally,” Gliksberg said. “Using religion as an excuse, federal taxpayer dollars are being used to discriminate.”

If Health and Human Services was running a child welfare program itself, it wouldn’t be allowed to hold sexual orientation against prospective parents, Gliksberg adds. The same standards, she argues, should apply to any agency contracted by the federal government at taxpayers’ expense.

The lawsuit seeks to stop organizations, contracted by Health and Human Services, from “using religious criteria to determine who can and can’t foster a refugee child,” she said. If organizations can’t adhere to that requirement, she says, their contracts should be terminated and their federal funding stopped.

When contacted for a response, Health and Human Services said it “does not comment on matters related to pending litigation.” USCCB and Catholic Charities of Fort Worth, also contacted, did not respond by publication.

Not ‘an easy win’

Outside legal experts hinted in emails to CNN that Marouf and Esplin probably won’t prevail in this case.

“If there were a statute that was being violated that would make it an easy win,” said Noah Feldman, a professor at Harvard Law School who specializes in constitutional studies and the relationship between law and religion. “But they are relying on the Constitution. And, in general, the Constitution has not been held to require government grantees not to discriminate when they are private actors.”

Michael McConnell, a professor at Stanford Law School and the director of the Stanford Constitutional Law Center, explained a bit further.

“The Supreme Court has long held as a constitutional matter that private organizations, including religious ones, do not lose their right to follow their own beliefs merely on account of receiving public money,” McConnell said. “The Establishment Clause prohibits the use of public funds for religious teaching and specifically religious uses (at least in the context of direct grants), but does not require religious or secular grantees to act contrary to conscience.”

These perspectives suggest that this latest roadblock in the couple’s path may not budge anytime soon.

‘Our home wasn’t good enough’

When the two women think about the children they’d like to raise, they picture adding to the melting pot they’ve already stirred.

Esplin was raised Mormon, with scores of relatives. She jokes that on their wedding day, Marouf’s Muslim family – her parents immigrated from Egypt and Turkey – expanded by 300 people.

Growing up, “I was surrounded with so much love and support. That was the narrative,” Esplin said. In Marouf, “I found the love of my life and couldn’t wait to start that. I was so sure that this was the perfect time to start a family.”

With the red rocks of southern Utah as a backdrop, Fatma Marouf, left, and Bryn Esplin vowed to spend their lives together and hoped to be parents.

It was Marouf’s expertise in immigrant rights that steered them to Catholic Charities. She’d been invited to tour and speak at the agency. She saw the children who were sleeping in offices, learned more about the hundreds of children in need and pictured a new road to parenthood.

Ironically, the same day she and Esplin were told they were ineligible to be foster parents, they say, Marouf received another professional invitation to speak at Catholic Charities.

Esplin says her wife accepted because she’s passionate about her work and cares about those kids. But it was a twist that still leaves her miffed.

“They are happy to take our skills, but our home wasn’t good enough,” Espin said.

Nearly 34,000 unaccompanied minors needed services in 2015, according to the most recent refugee resettlement fact sheet. Among those children are those who fled their home countries, often to escape violence. Mixed in are those who seek refugee status because of their own sexual orientation, Marouf said. She can’t help but wonder what sort of message it sends to those children about their own identities if people like her and Esplin aren’t allowed to take them in.

The implications of this lawsuit are about more than would-be foster parents in the LGBT community, their attorney says. Take an unmarried heterosexual couple that’s been together for decades. Under Catholic doctrine, Gliksberg says, they’re no more likely to pass the “Holy Family” test.

In the meantime, the biggest losers in all of this remain the children who deserve every loving home they can get, Marouf and Esplin say.

For this reason, the legal battle isn’t just about their wishes. They say they fight for refugee children and for the dignity of same-sex couples who want families.

After gaining the right to marry in this country, this feels to them like the next important step in earning equality.