A Tennessee woman is suing the Department of Health and Human Services after a federally funded foster care agency rejected her application because she is a lesbian.
Kelly Easter, who is from Nashville, wanted to apply to become a foster parent of an unaccompanied refugee children, according to her lawsuit, filed Wednesday in the U.S. District Court for the District of Columbia.
The U.S. Office of Refugee Resettlement directed her to Bethany Christian Services, the only entity participating in the program in her area and a sub-grantee of the United States Conference of Catholic Bishops (USCCB), which receives federal funds to provide foster care services.
Bethany had a longstanding policy of refusing to allow LGBTQ parents to apply to foster or adopt, which prevented Easter from applying last year.
In March, Bethany ended that policy, but when Easter applied, she was rejected again. A representative for Bethany told her its East Nashville office is funded by USCCB, which prohibits LGBTQ couples from applying, according to the lawsuit.
Easter is suing the Department of Health and Human Services, which oversees the Administration for Children and Families and its Office of Refugee Resettlement. She and her legal counsel allege that HHS, “by sanctioning and enabling discrimination and favoring certain religious beliefs,” is violating the First and Fifth Amendments.
“By preventing children under their care and custody from being placed in homes of LGBTQ people based on USCCB’s religious beliefs, the Defendants — through USCCB and its subgrantees — not only discriminate against LGBTQ people, but also effectively disregard the non-Catholic identities and beliefs of many of the unaccompanied refugee children for whom they are responsible,” the lawsuit states. “This conduct potentially increases those children’s alienation and vulnerability, while denying them access to loving homes that could serve them best — all at federal taxpayers’ expense.”
A spokesperson for HHS’ Administration of Children and Families said in an email that it will respond to the lawsuit in time, as with any lawsuit naming the federal government.
“HHS is committed to protecting the rights of LGBTQ+ individuals and ensuring access to our programs and services,” the spokesperson said.
Easter said in a statement that she is “heartbroken.”
“It hurt to be turned away — twice — solely because of my identity,” she said, according to a news release. “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?”
She added that she’s “more concerned about the children.” She said the government is hurting them by denying them a loving home.
“I am qualified and can provide a safe and stable home for a child,” she said. “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?”
Easter is represented by Lambda Legal, Americans United for the Separation of Church and State and the San Francisco-based law firm Orrick, Herrington & Sutcliffe LLP.
Karen L. Loewy, senior counsel at Lambda Legal, said the government is excluding Easter from applying to provide a home to a child in need while also “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,” Loewy said, according to a news release.
Federal law currently prohibits federal contractors and federally funded programs from discriminating on the basis of sex, which has recently been interpreted by the Biden administration and by most courts to include sexual orientation and gender identity. But there are exemptions from federal law for contractors and service providers who feel that providing certain services would conflict with their religious beliefs.
Some states have tried to pass stricter laws to protect LGBTQ people who want to foster or adopt children. Tennessee is actually one of 27 states that have a statute, regulation and/or agency policy that prohibits discrimination in foster care based on sexual orientation and gender identity, but it’s also one of 11 states that permits state-licensed child welfare agencies to refuse to provide services to children and families, including LGBTQ people and same-sex couples, if doing so conflicts with their religious beliefs, according to the Movement Advancement Project, a nonprofit think thank.
Five states have regulations or policies that prohibit discrimination in foster care based on sexual orientation only, and 18 states have no explicit protections against discrimination in foster care based on sexual orientation or gender identity, according to MAP.
The Supreme Court ruled on the issue of religious exemptions for federally funded contractors in June, but it avoided addressing whether religious contractors have a right to refuse service, or, as advocates say, have a license to discriminate.
Instead, the court ruled that the city of Philadelphia violated the Free Exercise Clause and discriminated against a religious foster care agency in applying its licensing process, which allows contractors to request exemptions to parts of the contract.
Absent a more clear declaration from the Supreme Court, LGBTQ people like Easter have continued to wage their battles in court. Lambda Legal and Americans United are representing Fatma Marouf and Bryn Esplin, a same-sex couple, in the same district as Easter. The couple alleges that a sub-grantee of USCCB rejected them from applying to foster unaccompanied refugee children because they didn’t “mirror the Holy Family.”