Kelly Easter grew increasingly concerned last year as she watched news coverage of vulnerable refugee children fleeing violence, natural disasters and poverty in Central America and arriving without parents or guardians at the United States’ southern border.
Although the start of the COVID-19 pandemic significantly reduced global migration for several months in the spring and early summer of 2020, the number of people trying to enter the U.S. was rising again by August 2020. And those numbers skyrocketed to record levels in 2021.
The number of unaccompanied children arriving at the U.S. border also has reached unprecedented levels. The U.S. Department of Health and Human Services, through its Office of Refugee Resettlement (ORR), is the agency responsible for caring for these unaccompanied minors. It reported there were more than 10,000 unaccompanied children in the agency’s care as of Oct. 31, 2021. That number fluctuates; it topped 20,000 earlier this year.
Ideally, the office tries to place refugee children with a parent or family member in the U.S. But finding and vetting those relatives can take time. And the surge in refugees combined with pandemic precautions that limit how many children can safely reside in temporary detention centers means that foster parents are needed more than ever.
Easter, watching these developments with dismay from her home in East Nashville, Tenn., wanted to provide one of those foster homes. “I have the resources,” the 47-year-old real estate agent said in an interview with TIME magazine in October. “I thought, ‘Why not? Let me help.’”
Easter reached out to ORR in September 2020 and was directed to the government-contracted agency providing services for refugee children in her region, Bethany Christian Services. The evangelical Christian agency’s website underscores the need for people like Easter: “We are in the middle of a profound crisis. Thousands of children from Central America, unaccompanied by a parent or guardian, are seeking refuge at the southern border of the United States. These children are being held in detention centers run by Border Patrol for days or even weeks. … We believe children need to be in homes, not detention centers. That’s why Bethany is urgently expanding our transitional foster care (TFC) program, which gives unaccompanied children safe, temporary homes while they wait to reunite with family members.”
Easter had several encouraging exchanges with Bethany representatives, who urged her to begin the process of becoming a transitional foster parent. But as she further researched the organization, she learned Bethany had a policy of refusing to work with LGBTQ people. Easter, who is a lesbian, asked Bethany if she could still be a foster parent, especially since she was interested in a program run by the federal government and funded by taxpayers. Bethany eventually responded that, since they are a subgrantee of the U.S. Conference of Catholic Bishops, which also refuses to place children with LGBTQ parents, they had to reject her.
Easter was heartbroken – especially for the children she was being denied the chance to help.
“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,” Easter said. “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?”
Early in 2021, Easter contacted ORR to ask whether such discrimination in a federal program was permissible. As she was awaiting a response, Bethany’s national leadership announced in March 2021 that it had changed its policy and would now accept LGBTQ families. The day after Bethany’s new policy was reported in The New York Times, Easter excitedly contacted Bethany again, hoping she now could apply to foster refugee children.
After several months of back-and-forth with Bethany representatives, Easter was told she still couldn’t foster children through Bethany’s East Nashville location because even though Bethany had changed its policy, USCCB hasn’t – it still rejects LGBTQ parents.
“I literally cried,” Easter told TIME.
Bethany told Easter she could try fostering through their newly opened location in Smyrna, Tenn., because its government contract was not funneled through USCCB. But that location is a half-hour from Easter’s home, and she’d have to drive there multiple times a week – perhaps even multiple times a day – making it unworkable.
“I am heartbroken,” Easter said. “It hurt to be turned away – twice – solely because of my identity.
“I’ve been a Christian since I was a little girl and my personal relationship with God is the most important thing to me,” she continued. “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?”
That’s why Americans United stepped in. Joined by Lambda Legal and the law firm Orrick, Herrington & Sutcliffe LLP, AU in October filed a federal lawsuit on Easter’s behalf against the U.S. Department of Health and Human Services, along with several HHS officials responsible for the agency’s programs, for enabling and sanctioning discrimination against LGBTQ foster parent applicants by organizations that receive taxpayer funds to care for unaccompanied refugee children.
For years the federal government has known that USCCB discriminates, and requires subgrantees like Bethany to discriminate, against LGBTQ foster parent applicants. This discrimination reduces the number of available homes for children in need and sends 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.
“The foundational American principle of church-state separation promises freedom without favor and equality without exception for everyone. 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,” said AU President and CEO Rachel Laser. “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.”
Easter is one of many prospective foster parents around the country who have been rejected by government-contracted, taxpayer-funded foster care agencies because the parents are the “wrong” religion, are LGBTQ or otherwise don’t share the agencies’ religious beliefs.
Easter isn’t even the only LGBTQ parent seeking to foster refugee children to be turned away by USCCB: Fatma Marouf and Bryn Esplin, a married, same-sex couple from Fort Worth, Texas, were rejected by Catholic Charities Fort Worth because the women’s marriage didn’t “mirror the Holy Family.”
Ironically, Catholic Charities reached out to Marouf first, seeking a partnership with the Immigrant Rights Clinic that she directs at Texas A&M School of Law. After learning about the program for unaccompanied refugee children, Marouf and Esplin felt compelled to help and inquired about fostering. But even as Catholic Charities sought to work with Marouf professionally, the agency cruelly said they would not accept her and her wife as foster parents.
USCCB’s position of turning away loving, qualified foster families seems at odds with its statements about both the overwhelming number of refugees in need of help and its faith-based call to recognize everyone’s humanity. In a statement released on World Refugee Day earlier this year, Bishop Mario E. Dorsonville, chairman of USCCB’s Committee on Migration, said, “In the face of each refugee, we see the face of Christ, calling us to be a neighbor. It is this – our shared humanity – that should motivate us to respond to those in need, so as to imitate the Good Samaritan in Luke’s Gospel.
“As Pope Francis teaches, ‘Being compassionate means recognizing the suffering of the other and taking immediate action to soothe, heal, and save. To be compassionate means to make room for that tenderness which today’s society so often asks us to repress,” Dorsonville continued. “Today, we possess an opportunity to welcome the refugee with dignity and share the many blessings we enjoy as a country. Let us seize it.”
But there seemed to be no consideration for Easter, Marouf or Esplin’s dignity when they were rejected by USCCB affiliates.
“For us, it really came as a surprise, because we felt like we were approaching a government program. It never even occurred to me that they would discriminate against us based on our sexual orientation,” Marouf said in a Supreme Court brief filed in 2020.
“I was really upset that such an important job had been handed over to an agency that unilaterally defines ‘best interest’ according to its own values,” Esplin added.
Americans United and Lambda Legal also represent Marouf and Esplin in a federal lawsuit filed in 2018 against HHS, several department officials and programs, and USCCB.
With the Biden administration taking office at the beginning of the year, court proceedings have been on hold in the Marouf-Esplin case to allow the new administration to assess its position in the litigation. But any hope for a fairer government response so far has turned to disappointment. In November, the government announced its intention to contract with and fund a “third-party entity” to identify and segregate same-sex couples from other program foster parent applicants in the Dallas-Fort Worth area. These parents would be categorically directed away from USCCB’s sub-grantee and toward an alternative grantee willing to accept their applications – and to do so precisely on account of USCCB’s religious beliefs disfavoring same-sex couples.
But filtering discrimination through a third-party entity does not cure HHS’s misconduct. The Constitution has never allowed the government to do indirectly what it is forbidden to do directly. The proposed scheme (as it has been articulated) would reinforce and further sanction the discrimination and harm caused by HHS’s conduct.
To date, neither the federal government nor the U.S. Supreme Court has satisfactorily intervened to prevent government-contracted, taxpayer-funded foster care agencies from using religion to discriminate. In last year’s Fulton v. City of Philadelphia, the court issued a narrow decision, limited to the specific facts of the case, which allowed Catholic Social Services to continue to refuse to work with LGBTQ parents, in blatant violation of the nondiscrimination policy in its contract with Philadelphia. Because the city was authorized to allow individualized exemptions from the non-discrimination requirements – though it never had done so – it had to exempt Catholic Social Services, the court determined.
Because the decision was focused on the unique facts of Philadelphia’s contract, legal analysts believe the decision doesn’t offer broad guidance for how other cases involving faith-based discrimination in foster care must be handled.
“Significantly, the court declined to rewrite the First Amendment to grant a broad license to discriminate in the name of religion,” AU’s Laser stated in response to the Fulton ruling. “Religious extremists did not get the sweeping free pass they were seeking to discriminate wherever and however they want.”
The court also was swayed in the Fulton case by the fact that there was no record of any LGBTQ parents being turned away by Catholic Social Services in Philadelphia, and because there were several other agencies in the city willing to work with LGBTQ parents.
That’s one of several points that make Easter’s and Marouf and Esplin’s cases different from Fulton.
“There’s actually harm here in two directions,” Karen L. Loewy, senior counsel at Lambda Legal, told TIME about Easter’s case. The harm to Easter, and the “harm to the kids in the government’s custody.”
“The result in Easter’s situation is particularly cruel and unnecessary,” said Kenneth Upton, senior litigation counsel for AU. “The government desperately needs parents like her in the midst of an immigration crisis and Bethany Christian Services greatly desires to place children in need with people like her. Yet, USCCB – the intermediary for federal funding – blocks the good that could occur because of a religious litmus test the government permits and no one else wants. Our hearts break for Easter and the children.”
“I had a home ready for a kid to have a safe place to be,” Easter said. “A warm bed. Good food. A nice, loving, supportive home. And a kid out there was denied that.
“I was raised Southern Baptist. I identify as a Christian. I completely respect religious freedom,” she added. “I just think that when it comes to government being involved in funding a program, and now my government is telling me that I am not worthy of taking care of a child simply because I’m gay, that is where the line gets crossed for me.”