girl holding hand Photo: NadyaEugene/

A Texas lesbian couple who alleged the federal government allowed a Catholic foster agency to discriminate against them as aspiring foster parents for a refugee immigrant child has rejected the government’s solution of an alternative provider that accepts same-sex couples.

In their lawsuit, Fatma Marouf, a professor at Texas A&M University School of Law in Fort Worth, and her wife, Bryn Esplin, alleged they applied to be foster parents to a refugee immigrant child, but Catholic Charities of Fort Worth turned them away because the lesbian couple did not “mirror the Holy Family.”

The plaintiffs alleged in Marouf v. Azar that the government and its subcontractor, the U.S. Conference of Catholic Bishops, are using taxpayer dollars to unlawfully fund the Catholic nonprofits for services for unaccompanied refugee children in a way that unlawfully discriminates against same-sex couples.

The litigation has been on hold as the government defendants worked to find an alternative subcontractor who would foster immigrant children with same-sex couples. At an hourlong status conference Wednesday, the government notified the court that it had secured a new subcontractor, and the plaintiffs explained why the solution did not resolve their dispute.

“Our stance is there needs to be a serious nondiscriminatory process for processing applications. All applicants need to have access to the same pool of children, so the children are not harmed and we are always focusing on the best interest of the child,” explained Jamie Gliksberg, senior attorney at Lambda Legal in Chicago, who represents the plaintiffs. “The government seems to think it’s sufficient to have a provider who will process LGBT or same-sex copules’ applications. In other words, a subgrantee that will not use a religious-based test in determining who can and cannot be a parent.”

In the end, Judge Amit Mehta of the U.S. District Court for the District of Columbia notified the parties that he would delay no further in moving the litigation forward by ruling on the defendants’ motions to dismiss.

In a May 21, 2018, motion to dismiss, the government argued that the plaintiffs don’t have standing to sue. It suggested that their status as taxpayers was not enough because it failed to demonstrate a concrete injury to satisfy legal standing. It also alleged the plaintiffs’ other claims about being denied as foster parents aren’t traceable to the federal government, who the motion claimed has sovereign-immunity protection from claims for damages.

There were similar arguments about standing in a motion by dismiss by the U.S. Conference of Catholic Bishops on May 21, 2018. That pleading said the plaintiffs’ claims lack merit. The conference’s motion also said there’s a long tradition of religious groups receiving government funds to provide social services.

“The Constitution permits religious accommodations that allow grant recipients to provide secular services while refraining from activities that would violate their religious conscience,” the motion said.

After settlement talks, the government notified the court in a Feb. 8 joint status report that it was working on creating an alternative provider with Lutheran Immigration and Refugee Service, which didn’t object to working with same-sex couples as foster parents. The government said this would resolve the plaintiffs’ claims, but the plaintiffs disagreed.

Next, in a May 9 motion for status conference, the government noted that Lutheran Immigration and Refugee Service still hadn’t located a partner to open a Dallas-Fort Worth foster care program. However, the Office of Refugee Resettlement on April 30 approved a different alternative provider, BCFS Health and Human Services, to open a 40-bed foster care program in Dallas-Fort Worth by October.

“BCFS would not have any religious or other objection to considering the Individual plaintiffs as prospective foster parents based on their same-sex marriage,” said the motion.

The federal defendants’ lawyer, Jim Powers, trial attorney in the U.S. Department of Justice’s Civil Division Federal Programs branch, didn’t immediately return a call or email seeking comment. The Catholic conference’s lawyer, Jones Day partner David Raimer of Washington, D.C., declined to comment.