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This lesbian couple is taking on a federally funded organization that uses religion to prevent LGBT people from fostering and adopting children

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BY TIM MURPHY

The sleeping and play areas were what bothered Fatma Marouf most. She’s a professor at Texas A&M University’s School of Law in Fort Worth and director of its Immigrant Rights Clinic. In the winter of 2017, she was invited to tour the federally funded facility that housed unaccompanied refugee children and placed them in foster homes.

“It was clear that the kids there would be better off in a home, a warmer place,” Marouf, 42, says of her visit.

That night, she talked about the possibility of fostering one or more children with her wife, Bryn Esplin, 34, a bioethics professor at Texas A&M. “We’d talked generally about adopting or fostering in the past, so I felt this could be the perfect way, fostering kids from a population we know and care about,” Marouf says. Marouf and Esplin were open to taking in any child in need, including often hard-toplace sibling sets or teens. In addition to working with immigrants, Marouf is the daughter of parents from the Middle East, where many of the kids at the facility were from.

Esplin agreed. “I was really excited,” she says. “We thought, ‘Gosh, now’s the time to start our family.’” They’d been married for two years. Marouf emailed the Catholic organization that runs the facility to tell them that she and Esplin, whom she called her “spouse,” were open to fostering.

Soon they were on an informational conference call with a staff member from the organization who ran down the requirements for foster parents. Bryn and Fatma listened. They needed so many square feet in their home. Check. A fire extinguisher. Check. Straight down the line, Marouf and Esplin were shaping up to be ideal foster parents.

Then this: The organization required their foster families to “mirror the holy family.”

On their end of the line, Marouf and Esplin looked at each other, startled. They then let the woman know that they were a same-sex couple. The staffer then told them that they were ineligible to even apply to be foster parents.

“What do you do with the LGBT children in your care?” Marouf asked. The staffer told her that the organization had no LGBT kids. Marouf and Esplin were, of course, skeptical. The couple’s concern for the children grew.

“We were both very upset” after the call, says Marouf. “Our jobs, backgrounds and home were perfect. But when they found out we were two women, it was over.”

She emailed the federal Office of Refugee Resettlement, notifying the agency of what happened. ORR provides millions of dollars of grant money (using federal taxpayer dollars) to the United States Conference of Catholic Bishops and its sub-grantees to administer child welfare services on the government’s behalf. After initially asking for and receiving the name of the organization’s staffer that the couple spoke with, the federal agency never followed up.

Marouf and Esplin weren’t prepared to let discrimination slide. A few calls led them to Lambda Legal, which filed a discrimination suit early this year in the U.S. District Court for the District of Columbia. ORR and USCCB, which never denied the discrimination claims, filed motions to dismiss. The motions are pending.

"Government funding of federal programs that discriminate against LGBT people on religious grounds is unconstitutional and hurtful to members of our community. What’s particularly disturbing in this case is that the discrimination occurs at the cost of the children in federal care.”
—  Jamie Gliksberg, Lambda Legal staff attorney

Currey Cook, Lambda Legal counsel and director of the Youth in Out-of- Home Care Project, works on these issues. “The principle at stake here is the fact that the U.S. Department of Health and Human Services—which oversees ORR—is allowing federal funds to flow to a religious organization that discriminates on the basis of its own religious beliefs.”

The issue is pending in Congress as well as being fought in court. In July, the House Appropriations Committee approved a federal spending bill that includes an amendment introduced by Rep. Robert Aderholt (R-Ala.). It would explicitly allow taxpayerfunded, faith-based adoption agencies to turn away LGBT families. (Ten states already have such laws.) The bill would also withhold 15 percent of federal funds allocated for child welfare services from states like New York and California that tried to enforce its nondiscrimination protections against nonprofits that discriminate on religious grounds.

Lambda Legal is among the many groups fighting the amendment. “We played a role in getting 41 senators to sign a letter saying that they’ll oppose any bill with such an amendment attached,” says Cook. “That’s a poison pill in the House, because it’s a dealkiller in the Senate. We’re hopeful it won’t move forward. But it’s important for people to know that there are members of Congress who want to pass laws allowing people to discriminate against LGBT foster and adoptive parents.”

As for Marouf and Esplin’s case, “government funding of federal programs that discriminate against LGBT people on religious grounds is unconstitutional and hurtful to members of our community,” says Lambda Legal’s Jamie Gliksberg, one of the lead attorneys on the case. “What’s particularly disturbing in this case is that the discrimination occurs at the cost of the children in federal care.”

Lambda Legal is fighting for those children. “We’re directly challenging HHS’s use of taxpayer dollars to fund organizations that use their own religious criteria to turn down loving and qualified parents when we know that there are far more children in need of homes than there are parents to care for them,” she says.

According to a recent study from UCLA School of Law’s Williams Institute, 2 million LGBT people are ready and willing to foster or adopt children, far more than the number of children in foster systems in the United States.

Marouf and Esplin remain among them. “We’ve looked into doing this through the regular state foster system, but Texas has a law explicitly allowing foster agencies to discriminate,” she says. “If our case works out for us, we’d still love to foster a refugee child or children. We just don’t know how long that could take.”

Esplin says it infuriates her that organizations use religion to block LGBT people from providing loving homes to children even as they plead for parents to take children in.

“I was raised Mormon, and Fatma was raised Muslim,” she says. “Those religions inform our values—and I don’t think that shame and discrimination are family values. So standing up against that in court means a lot to us.”