On February 20, 2018, a married same-sex couple filed this lawsuit in the U.S. District Court for the District of Columbia against the U.S. Department of Health and Human Services, the Administration for Children and Families, the Office of Refugee Resettlement, and the United States Conference of Catholic Bishops (USCCB) for violating the Establishment Clause (U.S. Const. Amend I) and the Fifth Amendment’s Equal Protection and Substantive Due Process clauses.

Plaintiffs claim that the Federal Defendants unconstitutionally provided taxpayer funds to USCCB (and their sub-grantees) to administer federal child welfare services for unaccompanied refugee children, as they granted these funds fully knowing that USCCB discriminates against same-sex couples seeking to foster or adopt children through these programs. Plaintiffs sought declaratory relief from Defendants admitting to their constitutional violations, and injunctive relief requiring Federal Defendants to ensure Plaintiffs can apply to these programs without discrimination and with adequate safeguards to prevent any use of religious or other criteria to exclude applicants based on their sexual orientation, sex, or the same-sex character of their marriage. They also sought nominal monetary damages and reasonable costs and attorney’s fees. This case was assigned to Judge Amit P. Mehta.

In February 2017, Plaintiffs, sought to foster a child through Catholic Charities of Fort Worth, a subgrantee of the USCCB under the Unaccompanied Refugee Minor (URM) Program and the Unaccompanied Alien Child (UAC) Program. After the Catholic Chartiy realized that the plaintiffs were a same-sex couple that did not “mirror the holy family,” their application was denied. Plaintiffs immediately reported this discrimination to the Office of Refugee Resettlement (ORR), but did not receive a response until mid April 2017. ORR’s response did not address the questions and only asked for the name of the staffer who allegedly discriminated against her and her wife. Plaintiffs provided this information in early May 2017 and received a “thank you” note the next day, but did not receive any further communication from either ORR or the Catholic Charity.

In March 2018, about one month after their initial filing, Plaintiffs amended the complaint to add the National LGBT Bar Association as a plaintiff. The Association is a professional membership-based organization comprised of more than 10,000 members of the legal community who support LGBT rights. They joined the suit on behalf of their members who were federal taxpayers who contributed to the general revenues from which Congress appropriated funds to the child welfare programs at issue in this case. They objected to paying for federally funded child welfare services that were provided in a discriminatory manner based on religious principles to which they did not subscribe.

In May 2018, Defendants filed a motion to dismiss the case for lack of jurisdiction. They claimed that the individual plaintiffs lacked standing because their alleged injury was not fairly traceable to the government’s challenged conduct, would not be redressable by a favorable decision, and that they did not have taxpayer standing to assert an Establishment Clause claim. Plaintiffs opposed the motion, and oral argument was set for late November 2018.

After the argument, parties were instructed to submit a joint status report within two weeks of the hearing. The first status report was submitted on December 14, 2018, and the second was scheduled to be submitted a month later. However, the lapse of appropriations for the federal government in early January 2019 derailed this plan. The next joint status report, submitted on February 8, 2019, indicated that while parties engaged in a good-faith effort to reach a settlement, they remained unable to resolve their issues at that time. In mid-February 2019, the court issued an order stating that the proceedings for Defendants’ motion to dismiss would go forward, while encouraging the parties to continue their settlement discussions.

On June 12, 2019, the court granted in part and denied in part Defendant’s motion to dismiss. The court agreed that none of the plaintiffs had taxpayer standing to assert an Establishment Clause violation, and as that was the only claim asserted by the National LGBT Bar Association, they were dismissed from the case. The married couple, however, had sufficient individual standing to pursue all three causes of action, and therefore the remainder of the Defendant’s motion to dismiss was denied. 391 F.Supp.3d 23.

As of March 17, 2020, the parties were still engaged in discovery.

Elise Coletta - 07/14/2019
Cedar Hobbs - 03/17/2020


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