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” ...