Same-Sex foster case can continue

Three same-sex couples can go forward with their lawsuit challenging a longstanding state policy that prevents them, and all unmarried couples, from adopting or being foster parents, a Lancaster County judge has ruled.

Greg and Stillman Stewart, Lisa Blakey and Janet Rodriguez, and Todd Vesely and Joel Busch sued the state of Nebraska last fall saying the policy violates their equal protection rights.

The suit takes aim at a 1995 administrative memorandum issued by Mary Dean Harvey, then director of the Nebraska Department of Social Services, which was one of several agencies that merged to form the present-day Department of Health and Human Services.

In it, it directed no foster home license be issued to “people who identify themselves as homosexuals” or “unrelated, unmarried adults residing together.”

The couples said they were able and ready to apply for foster care licenses.

Vesley and Busch were sent a letter from Health and Human Services saying they would not be granted a foster care license pursuant to the policy barring unmarried, unrelated adults who live together.

District Judge John Colborn said the Nebraska Legislature and state courts have not imposed a blanket prohibition of “unrelated, unmarried adults residing together” from adopting children or being foster parents. Nor people “who identify themselves as being homosexuals.”

In fact, Nebraska law currently allows both groups to adopt children through private adoption agencies or private individuals.

“However, the DHHS, through Memo 1-95 has,” Colborn wrote.

The judge said the only direction state law gives as to who might not be appropriate foster or adoptive parents is the requirement of criminal background checks and checks of the register of child protective cases.

Colborn said there also is no Nebraska statute or case law that would prohibit a parent from being given custody of a minor child simply because they were living with an unrelated, unmarried adult.

The state argued it served a legitimate government interest to place foster children in a setting closest to a traditional family setting.

But Colborn said the state hasn’t put the same restrictions on private adoption agencies.

The Nebraska Attorney General’s Office had asked that the case be dismissed, arguing the plaintiffs had no standing and had failed to state a claim.

In his order, Colborn said there was no evidence presented as to whether the policy could survive judicial scrutiny, and therefore the case could go forward.

The American Civil Liberties Union, which filed the case on behalf of the couples, applauded Colborn’s ruling.

“Given the serious shortage of qualified foster homes, this cruel policy reduces children’s chances of finding a loving family that can meet their needs,” said Amy Miller, legal director of the ACLU of Nebraska.

“Today’s decision takes us one step closer to removing this harmful policy,” she said.

She said courts across the country have rejected negative stereotypes about lesbian and gay parents and they look forward to showing the court here “that lesbian and gay parents are just as able as heterosexuals to provide loving homes to children in need.”

According to James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & AIDS Project, Nebraska is just one of three states that currently ban foster parenting or adoptions by gay people.

Utah and Mississippi are the others.

Attempts to reach the Nebraska Attorney General’s Office for comment late Monday afternoon were unsuccessful.