(ECF No. 1 at 13). "Thus it is reasonable to infer that the ability of faith-based agencies [like Miracle Hill] to employ religious criteria as a basis to turn away same-sex couples erects at least a [15]% barrier to the [Plaintiffs’] ability to ... foster a child in the State of [South Carolina]." Dumont v. Lyon , 341 F. Supp. 3d 706, 722 (E.D. Mich. 2018). Therefore, Plaintiffs have adequately alleged an injury in fact for both their Establishment Clause and Equal Protection claims.

Plaintiffs thus are actually contesting a discretionary executive action—not a legislative directive—as to which taxpayer standing under Flast is not available. SeeDumont v. Lyon , 341 F. Supp. 3d 706, 726–730 (E.D. Mich. 2018) (holding, in a nearly identical case, that the plaintiffs, who were turned away by a state-contracted and taxpayer-funded child placement agency based on their same-sex relationship, lacked taxpayer standing because "the legislative enactment at issue does not expressly authorize the religiously-challenged expenditure at issue"). Plaintiffs advance several arguments to avoid this result, none of which are convincing.

The Couple alleged that Defendants erected practical barriers making it more difficult for them to compete for the right to adopt on the same footing as others. See Dumont v. Lyon, 341 F. Supp. 3d. 706, 722 (E.D. Mich. 2018) (finding that the plaintiffs alleged an injury in fact in "the unequal treatment they received as a result of being turned away based upon their status as a same-sex couple, a barrier that makes ‘it more difficult for [same-sex couples to adopt] than it is for [heterosexual couples]’ ") (quoting City of Jacksonville, 508 U.S. at 666, 113 S.Ct. 2297). The Couple asserted that state-funded CPAs are able to provide better services than the Department.

The Couple alleged that Defendants erected practical barriers making it more difficult for them to compete for the right to adopt on the same footing as others. See Dumont v. Lyon, 341 F.Supp.3d. 706, 722 (E.D. Mich. 2018) (finding that the plaintiffs alleged an injury in fact in "the unequal treatment they received as a result of being turned away based upon their status as a same-sex couple, a barrier that makes 'it more difficult for [same-sex couples to adopt] than it is for [heterosexual couples]'" (quoting City of Jacksonville, 508 U.S. at 666)). The Couple asserted that state-funded CPAs are able to provide better services than the Department. In Rogers v. U.S. Department of Health &Human Services, 466 F.Supp.3d 625, 641 (D.S.C. 2020), the court found injury in fact based upon the plaintiffs' allegations of denial of access to well-resourced agencies that provided superior services to foster families.

The district court denied both motions. Dumont v. Lyon , 341 F. Supp. 3d 706 (E.D. Mich. 2018). The court limited itself to addressing whether the plaintiffs had stated Establishment Clause and Equal Protection claims, consistent with Federal Rule of Civil Procedure 12, and expressly disclaimed any opinion on the affirmative defenses raised by St. Vincent and the other intervenor-defendants.

Accordingly, it is reasonable to infer that the ability of faith-based agencies like Miracle Hill to use religious criteria to select its foster families creates a substantial barrier to Plaintiff's ability to foster a child in South Carolina. See, e.g.Dumont v. Lyon , 341 F. Supp. 3d 706, 722 (E.D. Mich. 2018). Therefore, Plaintiff has adequately alleged an injury in fact for both her Establishment Clause and Equal Protection claims.