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Lambda Legal @LambdaLegal
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Hey there! We’re at the US District Court for DC, arguing in our case on behalf of Bryn Esplin & Fatma Marouf, a married same-sex couple denied the opportunity to foster a refugee child because they don’t "mirror the holy family"—whatever *that* means. Follow along!
Arguing in court today is LL's own Senior Attorney Jamie Gliksberg (pictured in first tweet), joined by our Director of Constitutional Litigation @camillabtaylor & Ken Cho of @HLCitizenship. Opposition includes lawyers from @TheJusticeDept & @USCCB. Go team!
Judge Amit Mehta is presiding. We’re here to hear arguments on the DOJ’s Motion to Dismiss. The federal government is trying to say they're not responsible, and they want to toss the case.
Court begins by interjecting into the DOJ’s opening arguments: “The plaintiffs are not disqualified by being a same-sex couple, right? That’s the agency’s (HHS) position?”

DOJ attorney fumbles, saying there is no specific policy on this.
Here you have an issue of constitutional principle. In this stage, since you’re only challenging standing, I have to presume they will prevail on the merits.

If the agency is authorizing that particular behavior that violates these, why are you making an argument on standing?
CLARIFIER: The same-sex couple we're representing was rejected by the Catholic Charities of Fort Worth, a sub-grantee of the US Conf of Catholic Bishops, one of 2 grantees responsible for administering the HHS Unaccompanied Refugee Minors program, a 100% TAXPAYER-funded program.
Court narrows in on harms, in addressing DOJ lawyer: "Say one of your grantee's positions says children should only be placed with Latino families. No Asian families allowed. If the agency knows about it, you mean to tell me that that could go on without any redress?"
DOJ: The individual plaintiffs have only asserted claims to a specific episode: that would not provide a basis for plaintiffs to challenge how grant monies are spent across the country.

Court: Maybe, but we do know USCCB is a substantial subgrantee of the agency.
The The Court analyzes several forms of relief potentially available for this case. The DOJ asserts the Court does not have legal standing to order the federal government to engage with any specific grantee, although the agency might be willing to work additionally with another.
Court: Can this couple, by virtue of being in Fort Worth area, only be guaranteed foster placement by Fort Worth area org?
DOJ: Depends on scope of the grantees’ ability to work with families.

Admits to not being aware of any other options existing that work w/ this program.
DOJ lawyer representing HHS: The individual claims of this case lack traceability, decisions were made by individual grantees. The federal government does not control them

Court: ...Okay, understood, you don’t control the (sub-grantees') decision-making or religious beliefs. On the other hand it should come as no surprise that if you’re going to award funds to an organization that explicitly practices religious beliefs, there will be consequences.
Court: As long as we allow the discrimination to happen at the grantee or sub-grantee level, the government can’t do anything? That can’t be right.

(Nope, it's not!)
DOJ: What can the court order the government to do? What kind of relief can the court fashion? That wouldn’t bring the plaintiffs any closer to the relief they’re seeking: to foster a child.

(Potentially! But this is a premature question at this stage of litigation.)
The Court: Wouldn’t it be an appropriate relief to provide an injunction against an agency receiving funding until they cease discriminating?

DOJ: You don’t have the authority to grant that kind of injunction.

Court: Why don’t I have that authority?
DOJ on behalf of HHS: You know, this example you're making, [with racial discrimination in foster are placement], it's a terrible-sounding situation ...

The Court: No more terrible than the one experienced by the plaintiffs, honestly.
DOJ asserts that it's at the government’s discretion to engage with any service provider.

Court suggests that it would be possible for HHS to perhaps fill a void by finding another provider.
DOJ representing HHS moves to brief discussion of the issue of taxpayer standing. Say that can only be applied in v specific instances, and this case doesn't qualify. Cites Hein v. Freedom From Religion Foundation.
Program in question was established via congressional mandate.
DOJ position is that because there are no specific refs to charitable orgs in Act that established the program, & there’s no specific mention of religious orgs in appropriations themselves, that = lack of standing.
USCCB attorney now speaks; asks us to "take a step back and remember how we all got here."
Congress started a program to care for unaccompanied minor refugee children. The Conference just so happens to be one of the largest providers of care in the country.
The USCCB is trying to pass the buck to the Catholic Charities of Fort Worth, saying they have no control over how the sub-grantee behaves.

This is F A L S E.

The USCCB has OPENLY admitted that they would cease funding sub-grantees if they were to license same-sex couples.
Court: Is there a specific anti-discrimination provision that is a condition of the grant?

USCCB attorney: I’m not aware there is anything specific in the grant itself. Plaintiffs cite a couple of HHS regulations in their filing ...

(We sure do!)
USCCB attorney: The whole premise of their filing is that the government funding somehow changes the behavior of the grantee.

...Actually, the premise of our filing is that same-sex couples should be treated the same as any other when they walk into an agency. ¯\_(ツ)_/¯
Court: Why couldn’t I order your agency to offer foster care opportunities to all? Couldn't I give you all some discovery time to find that this relief might be possible?

USCCB: Even looking at other refugee programs, it’s speculative that they would step forward.
USCCB: They haven’t given us any sort of specifics as to what redress would look like.

... Have y'all considered maybe ... not discriminating?
Court: The grant specifically said: "We will conduct this program in accordance with our religious beliefs.”
There is a portion of their website that says children should be placed in a home with a married male and female. It says it. Let's not put our heads in the sand.
Court: I find it hard to believe that you need to define encouragement as anything other than “looking the other way”.

I don't think anyone up here would be making these allegations if this was discrimination based on race, or based on age.
Court: I don’t think anyone would be up here saying it is their "sincere religious belief" that children cannot be placed with African American parents.

USCCB: There is a distinction there.

(Us: ... )
USCCB lawyer: The government hired the USCCB, one of the largest foster care providers in the country. There is a distinction.
You don't hire the KKK unless you want them to discriminate — that's not us. (??!!)
PRO TIP: If you are comparing yourself to THE KKK (!) to prove that you’re not practicing discrimination … your scale of what distinguishes as discrimination might need a LITTLE adjustment!
The USCCB lawyer continues. Implies that sanctioning USCCB would affect thousands of refugee children; appealing to “harming the children” logic.

What harms children more, potentially placing them in loving homes or a large organization withholding all services altogether?
USCCB lawyer argues that our clients did not seek reasonable redress.

Fatma and Bryn literally called up to file a complaint. HHS's decision to maintain radio silence towards them is tacit authorization of discrimination.
And our attorney, Jamie Gliksberg is up!

"We are asking that our clients be able to walk into the agency's office and not be discriminated against, stigmatized, or faced with other obstacles that another couple would not face." 🙌🏽
Jamie shines in driving home the big points: The way it’s set up in Texas is that USCCB is the only grantee that is accepting Unaccompanied Refugee Minor program applications.

This is the ONLY place for Fatma and Bryn to apply to foster a refugee or unaccompanied minor.
The Court: Would you be satisfied if I ordered HHS to do what USCCB is doing? Accepting applications and processing them and placing children?
Jamie: The HHS is encouraging USCCB to discriminate using a religious-based test. There are anti-discrimination rules & policies. They are not being applied or enforced.

HHS is providing these grants, but PROCESSES in place are violating policies and violating the Constitution.
The government is knowingly enabling & authorizing these programs to be run under a Catholic doctrine, and this means they would not provide these services to same-sex couples. They openly say they will be discriminating on this basis. They admit this in their own brief!
Let's be clear: We are challenging the government’s own conduct, not USCCB’s. The federal government is fully responsible for this program.

The fact that they gave away the responsibilities to a grantee does not mean they are not responsible for upholding the Constitution.
The Court: So what are our options for redress?
Jamie Gliksberg: “Redressability is easily established when the injury arises from an identifiable discriminatory policy.” We don’t need to at this stage determine what would make the most remedy.
Enjoining the policy would resolve the injuries experienced here, but we’re not asking that the government remove all funding to USCCB. There are various mechanisms in which USCCB continues to provide services.
These could be part of remedy determined later in litigation.
The USCCB & DOJ tried to argue that there is no traceability between the injuries our clients experienced and the federal government. Wrong!
2 specific government actions make the injuries traceable:.
1. HHS ratified the discrimination in providing the money knowingly to USCCB, who stated CLEARLY they would administer the program in line with their religious beliefs.
2. They did not respond when clients complained.
To be clear: Ignoring Fatma & Bryn's complaint, that's not a failure to respond, it is a denial. It’s HHS's program, they are supposed to be responsible for it--
The Court: "It's a de-facto denial."
Gliksberg: "Correct."
Defendants want to focus on it being just "a lost opportunity” to foster a child.

But how about government message being sent to Fatma Bryan and other same-sex couples, that they are somehow less worthy or less deserving?

This subjected them to demeaning unequal treatment.
HHS's actions became explicit governmental coercive endorsement of religion when they ratified who could or could not participate in government services.

And that is a violation of the Establishment Clause.
It's not just about the opportunity to become foster parents. Stigma itself is a cognizable injury under the Equal Protection and Due Process clauses.

Two separate injuries: loss of opportunity & stigma related to unequal treatment.

Change in government process is necessary.
Again, we are not looking to take away funding from USCCB. We are happy to provide accommodations; but the process must be as seamless for same-sex couples as it would be for different-sex couples.

As long as people can equally submit their applications.
Judge Mehta and LL Senior Attorney Jamie Gliksberg engaged in a long discussion on the implications of various legal decisions regarding taxpayer standing and congressional appropriations. Wish you were here, #AppellateTwitter! 😘
Congress’s tax and spending powers specifically authorized this grant, and continues funding this year after year, knowing that the funds are explicitly distributed to a religious organization that practices a #LicenseToDiscriminate based on a religious test.
In closing: The defendants' (HHS & USCCB's) stance is what threatens children in foster care. There’s an entire universe of possible loving homes being denied to children in the government’s care, because of this religious discrimination.
The Court closes by asking us to work together to try and develop a resolution for the individual claims. He will consider taxpayer standing. Court requests we return in 6 weeks with a statute from both sides. No rulings from the bench. And we're out!
This was a collaborative effort between @LambdaLegal, @HLCitizenship, @LGBTBar & others to bring together today's arguments. Big thanks and congratulations to all involved!
Special thanks to our clients Fatma & Bryn for sharing their story, and joining us in court today.
Read our full statement on today's argument. Fatma and Bryn deserve their day in court. #LGBTQ
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