Americans United for Separation of Church and State and Lambda Legal, together with the law firm Orrick, Herrington & Sutcliffe LLP, today filed a federal lawsuit against the U.S. Department of Health and Human Services, along with several HHS officials and programs, for enabling and sanctioning discrimination against LGBTQ foster care applicants by organizations that receive taxpayer funds to care for unaccompanied refugee children.

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The case, Easter v. HHS, was filed on behalf of Kelly Easter, from East Nashville, Tennessee, who wishes to become a foster parent for a child in a federal foster care program for immigrant children. Easter’s inquiry to the U.S. Office of Refugee Resettlement (ORR) was directed to the only entity participating in the program in her area: Bethany Christian Services, a sub-grantee of the United States Conference of Catholic Bishops (USCCB), which receives federal funds to provide foster care services. Bethany refused to permit Easter to apply to be a foster parent solely because she is a lesbian. Easter reported this discrimination to ORR.

When Bethany’s national leadership announced earlier this year that it had changed its policy and would now accept LGBTQ families, Easter again attempted to apply. However, a representative from Bethany informed her that she still would not be permitted to apply to the program near her home because Bethany operates that program as a sub-grantee of USCCB, which continues to exclude LGBTQ foster parent applicants from participation.

For years the federal government has known that USCCB discriminates and requires its sub-grantees to discriminate against LGBTQ foster parent applicants, reducing the number of available homes for children in need, and sending a damaging message to LGBTQ adults and children alike that there is something wrong with their families. Yet HHS officials continue to enable and sanction this discrimination.

Plaintiff describes impact of foster care discrimination

“I am heartbroken. It hurt to be turned away – twice – solely because of my identity," said Plaintiff Kelly Easter. "I’ve been a Christian since I was a little girl and my personal relationship with God is the most important thing to me. I also know that LGBTQ people can have thriving families and that they are as important and deserving as any other. How can the government tell me that my beliefs are wrong?"

“But I’m more concerned about the children. The federal government is supposed to be helping them, but by denying a loving home to a child or young person in need, they are not doing that; they are actually hurting them. I am qualified and can provide a safe and stable home for a child. How is it better for them to stay in a group setting instead of a home with someone who can care for and support them adequately?”

There are more unaccompanied refugee children in the federal government’s care than there are eligible foster homes available for these children. By allowing USCCB to require its subgrantees to use religion to discriminate against LGBTQ people, the federal government is harming prospective parents and vulnerable children who are denied the opportunity to find safe, loving homes. By sanctioning and enabling discrimination and favoring certain religious beliefs, the government is violating the First and Fifth Amendments of the U.S. Constitution.

Agencies provide legal assistance to LGBTQ foster parents suffering discrimination

“The federal government cares for thousands of immigrant children in foster care programs," said Karen L. Loewy, senior counsel at Lambda Legal. "Ms. Easter would like to provide a safe and nurturing home to a child in need. However, our government excludes her from applying by knowingly funneling millions of dollars of taxpayer money into a child welfare organization that refuses to allow LGBTQ people to apply to be foster parents. This kind of discrimination not only hurts the people turned away—it hurts the children in these programs by reducing the number of available homes, and depriving these children of the opportunity to be considered for placement in loving homes that may best serve their individual needs.”

“The foundational American principle of church-state separation promises freedom without favor and equality without exception for everyone" said Rachel Laser, president and CEO of Americans United for Separation of Church & State. "The federal government is reneging on that constitutional promise by allowing a taxpayer-funded agency to discriminate against Kelly Easter because she doesn’t live according to its religious beliefs. Our laws cannot allow anyone to use their religious beliefs to harm others, and especially not vulnerable children and the commendable people like Kelly who want to help them.”

The lawsuit was filed in the U.S. District Court for the District of Columbia, where another case of the federal government permitting discrimination against prospective foster parents who are a same-sex couple is pending. In Marouf v. HHS, a sub-grantee of USCCB rejected Fatma Marouf and Bryn Esplin from applying to foster unaccompanied refugee children because, as a married same-sex couple, they didn’t “mirror the Holy Family,” as the agency requires. Lambda Legal and Americans United also represent Marouf and Esplin.

In addition to the U.S. Dept. of Health and Human Services, also named as defendants in Easter v. HHS are ORR and the Administration for Children and Families, as well as HHS Secretary Xavier Becerra, ACF Acting Assistant Secretary Jooyeun Chang and ORR Director Cindy Huang.

The legal team representing Kelly Easter includes, at Lambda Legal, Camilla B. Taylor, Karen L. Loewy and M. Currey Cook; at Americans United, Richard B. Katskee and Kenneth D. Upton, Jr.; and at Orrick, Herrington & Sutcliffe LLP, Seth Harrington, Daniel A. Rubens and Andrew D. Silverman.

A copy of the complaint in Easter v. HHS is available here.