Metro Weekly

Nebraska Supreme Court throws out ban on same-sex foster parents

State ordered to stop treating same-sex couples differently in foster and adoption cases

Nebraska State Capitol Building – Photo: Carol M. Highsmith, via Wikimedia.

Nebraska’s decades-old ban prohibiting gays and lesbians from becoming foster parents has been struck down.

In a unanimous decision, the Nebraska Supreme Court upheld a lower court’s decision striking down the ban, the only such law still in place following the legalization of same-sex marriage.

The lawsuit was brought by the ACLU on behalf of three same-sex couples who wished to challenge a 1995 administrative memo that prohibited same-sex couples from being considered as foster or adoptive parents.

A lower court ordered the 1995 memo rescinded and moved to prevent the state from enforcing the ban on same-sex foster parents. The court also ordered the state and its agents to “refrain from [treating] gay and lesbian individuals and couples differently from similarly situated heterosexual individuals and couples,” when evaluating foster carers or adoption applicants.

But the state appealed, arguing that the three couples lacked standing because they had not yet applied for and been rejected in obtaining a foster care license or having a child who is a ward of the state placed in their homes.

Nebraska also contends that the 1995 memo was no longer being enforced by the state Department of Health and Human Services, even though it was never officially rescinded and remained on the books, as well as on DHHS website.

The state said the lawsuit became moot when DHHS staff removed the language of the memo from its website three weeks after the plaintiffs filed their lawsuit. But the Nebraska Supreme Court rejected those arguments.

“The harm the plaintiffs wish to avoid is not just the possible, ultimate inability to foster state wards; it is the discriminatory stigma and unequal treatment that homosexual foster applicants and licensees must suffer if they wish to participate in the foster care system,” Justice John Wright wrote for the court. “The imminent injury that the court redressed was the plaintiffs’ inability to be treated on equal footing with heterosexual applicants.

“We find several U.S. Supreme Court cases instructive on this issue. The U.S. Supreme Court has specifically rejected the argument that persons claiming denial of equal treatment must demonstrate their ultimate inability to obtain a benefit in order for their claims to be justiciable,” Wright continued. “As noted by the district court below, the Court has explained that the injury in an equal protection case is the imposition of a barrier that makes it more difficult for members of one group to obtain a benefit, rather than the ultimate inability to obtain the benefit.”

LGBTQ advocates celebrated the ruling, with the ACLU of Nebraska’s executive director, Danielle Conrad, calling it a “victory for children and LGBT Nebraskans.”

“Since the lower court ruling striking down Nebraska’s ban, our clients Todd and Joel have opened their hearts and home to several children in need,” Conrad said in a statement. “There are tens of thousands of LGBT people who call the Cornhusker State home and thousands of Nebraska children in need of a foster care placement. This victory means that Nebraska’s motto of ‘Equality before the Law’ rings out more truly for all in our state.”

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