Marouf v. Azar, Case No. 18-cv-00378 (APM)

• Decision Date: 12 June 2019
• Docket Number: Case No. 18-cv-00378 (APM)
• Citation: 391 F.Supp.3d 23
• Parties: Fatma MAROUF, et al., Plaintiffs, v. Alex AZAR, in his official capacity as Secretary of the United States Department of Health and Human Services, et al., Defendants.
• Court: U.S. District Court — District of Columbia

391 F.Supp.3d 23

Fatma MAROUF, et al., Plaintiffs,

v.Alex AZAR, in his official capacity as Secretary of the United States Department of Health and Human Services, et al., Defendants.

Case No. 18-cv-00378 (APM)

United States District Court, District of Columbia.

Signed June 12, 2019

Alali Dagogo-Jack, Pro Hac Vice, Hogan Lovells US LLP, Menlo Park, CA, Ann Stanton, Pro Hac Vice, Hogan Lovells US LLP, Denver, CO, Camilla B. Taylor, Pro Hac Vice, Jamie Avra Gliksberg, Pro Hac Vice, Lambda Legal Defense and Education Fund, Inc., Chicago, IL, Daryl Lian Kleiman, Hogan Lovells US LLP, New York, NY, Heaven Chanel Chin Chee, Pro Hac Vice, Hogan Lovells US LLP, Houston, TX, James Anthony Huang, Pro Hac Vice, Jennifer A. Fleury, Kenneth Y. Choe, Jessica Lynn Ellsworth, Hogan Lovells US LLP, Kenneth Dale Upton, Pro Hac Vice, Americans United for Separation of Church and State Legal Department, Washington, DC, for Plaintiffs.

James R. Powers, U.S. Department of Justice, Anthony J. Dick, Pro Hac Vice, David Timothy Raimer, Jones Day, Washington, DC, John D. Goetz, Pro Hac Vice, Leon F. DeJulius, Jr., Pro Hac Vice, Jones Day, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

Amit P. Mehta, United States District Court Judge

I. INTRODUCTION

The U.S. Department of Health and Human Services ("HHS") awards grant money and enters into cooperative agreements with various child welfare organizations to perform services for unaccompanied refugee children who have entered the United States. HHS grantees include religiously affiliated organizations, such as Defendant U.S. Conference of Catholic Bishops ("USCCB"). The child welfare services that HHS grantees provide include foster care, residential placement, and adoption services.

Plaintiffs Fatma Marouf and Bryn Esplin live in Fort Worth, Texas. They wish to become foster parents for an unaccompanied refugee child. In February 2017, they sought out information about foster care programs from Catholic Charities of Fort Worth, a sub-grantee of USCCB. Plaintiffs quickly learned that they would not be approved as foster parents. The reason: they are a married lesbian couple. Catholic Charities of Fort Worth would not qualify them as foster parents because of its religious beliefs regarding same-sex marriage and raising a child within a traditional family structure.

Plaintiffs then brought this action. They assert violations of the Establishment Clause and the Equal Protection Clause and a deprivation of Substantive Due Process. Plaintiffs allege that HHS unconstitutionally awarded grant money to USCCB, despite knowing that USCCB and its sub-grantees, due to their religious beliefs, would use taxpayer funds in a manner that discriminates against same-sex couples.

The merits of Plaintiffs' case are not yet before the court. Instead, Defendants challenge Plaintiffs' standing to bring suit. For the reasons that follow, the court grants Defendants' Motions to Dismiss in part. The court agrees with Defendants that no Plaintiff has taxpayer standing to assert a violation of the Establishment Clause. Because the sole cause of action brought by Plaintiff National LGBT Bar Association is the Establishment Clause claim, it is dismissed from this case. On the other hand, the court finds that Plaintiffs Marouf and Esplin have sufficiently pleaded individual standing to pursue all three causes of action. The court therefore denies the remainder of Defendants' Motions.

II. BACKGROUND

A. Factual Background

1. The Unaccompanied Refugee Minor Program and the Unaccompanied Alien Children Program

At issue in this case are two federal programs whose purpose is to provide support for the "thousands of unaccompanied refugee children" under the care of the federal government: (1) the Unaccompanied Refugee Minor Program ("URM Program") and (2) the Unaccompanied Alien Children Program ("UC Program"). Am. Compl., ECF No. 21 [hereinafter Am. Compl.] ¶¶ 16–18. These programs are administered through the Office of Refugee Resettlement ("ORR"), which is housed within HHS. See id. ¶ 10.

Two pieces of legislation authorize the URM and UC Programs: the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA") and the Refugee Act of 1980. The TVPRA authorizes ORR to "award grants to, and enter into contracts with, voluntary agencies to carry out [the UC Program]." 8 U.S.C. § 1232(i). The Refugee Act authorizes ORR "to provide assistance, reimbursement to States, and grants to and contracts with public and private nonprofit agencies" to carry out the URM Program. Id. § 1522(d)(2)(A). Neither Act expressly mandates that ORR contract with or award grants to religiously affiliated organizations, or even requires ORR to engage with private entities at all. Nevertheless, ORR has chosen to administer the Programs by awarding grants to, and signing cooperative agreements with, various child welfare organizations. Such organizations are tasked with, among other things, "matching children in their care with qualified families" for fostering and adoption. Am. Compl. ¶ 20. "Religiously affiliated organizations are among the providers of federally funded care for children under the URM Program and the UC Program." Id. ¶ 21.

Though Congress established these programs by statute, it has not funded them through specific line items. Instead, for the last four years, Congress simply has appropriated a lump-sum amount to the Administration for Children and Families—the component of HHS in which ORR is located—to carry out refugee and entrant assistance activities. See Consolidated Appropriations Act, 2018, Pub. L. No. 115-141, Div. H, Tit. II, 132 Stat. 348, 728 (Mar. 23, 2018) (appropriating approximately $1.86 billion); Consolidated Appropriations Act, 2017, Pub. L. No. 115-31, Div. H, Tit. II, 131 Stat. 135, 531 (May 5, 2017) (appropriating approximately $1.67 billion); Consolidated Appropriations Act, 2016, Pub. L. No. 114-113, Div. H, Tit. II, 129 Stat. 2242, 2612–13 (Dec. 18, 2015) (appropriating approximately $1.67 billion); Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, Div. G. Tit. II, 128 Stat. 2130, 2479 (Dec. 16, 2014) (appropriating approximately $1.56 billion). Thus, funding for the URM and UC Programs comes from a general budget appropriation.

2. The United States Conference of Catholic Bishops

The United States Conference of Catholic Bishops, or USCCB, is a long-time grantee of ORR and, in fact, is the largest recipient of URM and UC Program grants. Pls.' Mem. in Supp. of Pls.' Opp'n to Mot. to Dismiss, ECF No. 34 [hereinafter Pls.' Opp'n], at 17. As relevant to this case, USCCB did not itself use the grants to provide child welfare services. Instead, it disbursed the funds to a sub-grantee in Fort Worth, Texas, who in turn directly delivered services under the URM and UC Programs.

In its HHS grant applications for both programs, USCCB made known its Catholic identity and how that identity would affect its use of grant funds. In its URM Program grant application, USCCB represented that it "must ensure that services provided under this application are not contrary to the authentic teaching of the Catholic Church, its moral convictions, or religious beliefs." Am. Compl. ¶ 30. Similarly, in its UC Program grant application, USCCB stated that it "must ensure that services provided under this application are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs in an approach that is consistent with" the agency's Policy on Grants to Faith-Based Organizations. Id. ¶ 31.

USCCB also made clear that its sub-grantees would "ensure" delivery of services consistent with the Catholic faith. USCCB notified ORR that sub-grantees would have to comply with an agreement provision titled "Catholic Identity," under which the sub-grantee promised "[to] ensure that services provided to those served under this Agreement are not contrary to the authentic teaching of the Catholic Church, its moral convictions, and religious beliefs. Accordingly, [USCCB] expects that the Sub-recipient will provide services under this Agreement within certain parameters ..." Id. ¶ 32.

At the time it submitted these grant applications, USCCB's position on same-sex marriage was unequivocal and a matter of public record. For instance, USCCB's Fact Sheets concerning adoption and foster care services, which have appeared on USCCB's website "since at least 2013," state that " ‘[w]hen placing children with couples, Catholic Charities ensures those children enjoy the advantage of having a mother and a father who are married.’ " Id. ¶ 35 (citing Discrimination Against Catholic Adoption Services, USCCB, http://www.usccb.org/issues-and-action/religious-liberty/discrimination-against-catholic-adoption-services.cfm (last visited Feb. 16, 2018)). Another section of the website, titled "Frequently Asked Questions About the Defense of Marriage," states that "[p]lacing a child in the care of two men or two women may be well-intentioned, but ultimately deprives the child of that which best serves his or her interests – a mother and a father." Id. ¶ 36 (citing Frequently Asked Questions About the Defense of Marriage, USCCB, http://www.usccb.org/issues-and-action/marriage-andfamily/marriage/promotion-and-defense-of-marriage/frequently-asked-questions-ondefense-of-marriage.cfm (last visited Feb. 16, 2018)). Notwithstanding these clear positions on same-sex marriage and placing children with same-sex couples, year-upon-year ORR continued to award grant funding to USCCB to administer the URM and UC Programs. Id. ¶ 38.

3. Plaintiffs Fatma Marouf and Bryn Esplin

Plaintiffs Fatma Marouf and Bryn Esplin are a same-sex married couple living in Fort Worth, Texas. Am. Compl. ¶ 5. They pay federal taxes. Id. Married since 2015, Plaintiffs aver that they are "eager to bring a child into their family" and have been actively exploring different options to do so. Id. ¶ 44.

In February 2017, Plai...