Fatma Marouf and Bryn Esplin sued after a government-funded Catholic group blocked them from fostering refugee children. A court ruling this month allows their case to go forward.

In 2017, Catholic Charities of Fort Worth reached out to Fatma Marouf, a law school professor at Texas A&M University. Marouf, who directs the school’s immigrant rights clinic, seemed like a natural ally for the Catholic group, the only organization in the region taking federal money to assist immigrant and refugee children arriving in the United States without a parent or legal guardian.

Marouf says she felt both a professional and personal calling to help after she toured Catholic Charities’ Fort Worth shelter, where some of the kids were housed. When she got home that night, Marouf raised the idea of fostering a refugee child with her wife, Bryn Esplin, a bioethics professor at the university’s medical school. The couple, who had tried unsuccessfully to have their own child, quickly got excited about fostering.

Catholic Charities rejected the professors after realizing both are women; the couple says they were told by a person with the religious group that foster parents must “mirror the holy family.”

Marouf and Esplin say Catholic Charities wouldn’t even let them apply for the program after learning both are women. They complained to the federal Office of Refugee Resettlement, which oversees the programs. Both are respected professors at the top of their fields, one of whom has made a career fighting for the legal rights of immigrants and refugees. “They said no to us so quickly and then we just got ignored,” Marouf told the Observer. “If this happened to us of all people, I wondered who else was getting rejected.”

Last year Marouf and Esplin sued the U.S. Conference of Catholic Bishops and the federal office that oversees the refugee programs, arguing that LGBTQ couples seeking to foster migrant children face an illegal and discriminatory religious test. This month a judge denied the defendants’ attempts to dismiss the lawsuit, saying the government can’t distance itself from discrimination carried out on its behalf.

Lambda Legal, the LGBTQ rights group litigating the case for the couple, calls the lawsuit part of a larger fight to end government-funded discrimination, particularly in state and federal child welfare programs administered by outside religious groups. Earlier this year, Lambda Legal sued on behalf of a same-sex couple in South Carolina who were rejected on religious grounds by the state’s largest government-contracted foster care group. Texas is one of 10 states with laws allowing religious placement agencies to turn away LGBTQ parents.

The American Bar Association decries those laws as “state-sanctioned discrimination.” Jamie Gilksberg, a senior attorney with Lambda Legal, says Marouf and Esplin’s case could help end similar discrimination at the federal level. “The government can’t bury its head in the sand when it chooses groups that run taxpayer-funded programs in a discriminatory way,” Gliksberg told the Observer.

Marouf and Esplin’s lawsuit claims the feds knowingly funded a group that refuses to work with LGBTQ families to run a government program, and then turned a blind eye to the discrimination that followed. The Conference of Bishops, which has taken millions in federal grant funding to run child refugee programs, including Catholic Charities programs in Fort Worth, states in grant applications to the feds that it will only provide services in accordance with “the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs.” The group’s own fact sheet on adoption and foster services says it works to ensure children “enjoy the advantage of having a mother and father who are married.”

“The government can’t bury its head in the sand when it chooses groups that run taxpayer-funded programs in a discriminatory way.”

In asking the court to dismiss the lawsuit, the government has essentially argued that a federal agency shouldn’t be held responsible when a taxpayer-funded group wrongfully excludes people from a federal program. That head-in-the-sand approach didn’t fly with the federal district judge on the case, Amit Mehta. “The troubling consequence of defendants’ position, if accepted, is apparent on its face,” Mehta wrote in a June 12 opinion allowing the lawsuit to move forward. “Surely, the government would not take this position if, say, plaintiffs here were excluded from fostering a child based on their gender (both are women), national origin (Marouf is the daughter of Egyptian and Turkish immigrants), or religious faith (Marouf was raised a Muslim, Esplin a Mormon).” The court will now consider the couple’s constitutional claims, making a trial in the case more likely.

In legal filings, the Conference of Catholic Bishops has effectively threatened to pull out of the foster programs they’ve been tapped to administer if its groups can’t reject same-sex couples.That is indeed what other Catholic-affiliated groups across the country have done when confronted with local laws requiring them to allow same-sex couples to adopt or raise foster children. Neither Catholic Charities of Fort Worth nor lawyers representing the Conference of Catholic Bishops on the case responded to questions from the Observer.

Marouf and Esplin worry about other trickle-down consequences when groups that discriminate implement critical federal programs, especially ones that are supposed to protect the vulnerable. When Catholic Charities told the couple that same-sex spouses couldn’t even apply, Marouf says she asked what happens to LGBTQ children the group encounters who need a foster family.

“They seemed surprised and said there weren’t any in their care,” Marouf recalled. “I imagine if I were in their care as an LGBT unaccompanied minor, I would probably feel very ashamed and keep that to myself, too.”