Lawsuit Challenging Nebraska Ban on Gay Foster Parents Can Proceed

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Lawsuit Challenging Nebraska Ban on Gay Foster Parents Can Proceed

Jessica Mason Pieklo

The ruling sets the stage for a later trial challenging the constitutionality of one of three remaining bans in the nation on gay foster parents.

A Nebraska state trial court has ruled a lawsuit can proceed challenging a state agency policy banning gay and lesbian individuals and couples from serving as foster parents or adopting children.

The lawsuit, filed by the American Civil Liberties Union (ACLU), the ACLU Nebraska, and the law firm Sullivan & Cromwell, challenges a policy developed in 1995 that prohibits the Nebraska Department of Health and Human Services from placing foster children with “persons who identify themselves as homosexuals” or persons who are “unrelated, unmarried adults residing together.” The ban on gay foster parenting extends further, though, and prohibits these individuals from adopting children out of the foster care system as well. That’s because in Nebraska, individuals must first be licensed as foster parents before they can adopt children from state custody.

The ACLU brought the challenge on behalf of Greg and Stillman Stewart and two other couples who would like to serve as foster or adoptive parents in the state. According to the complaint, Nebraska’s policy prevents more than qualified couples like the Stewarts—model candidates who would easily qualify but for the ban—from becoming adoptive parents in the state. The Stewarts have been together for over 30 years, were married in California, and are parents to five children they adopted out of the California foster care system. In 2011, their entire family moved to Lincoln, Nebraska, when Greg, a minister, took a position with a church in the state. When they were settled from the move, the Stewarts inquired about being foster parents in Nebraska but were turned away because they are gay men.

The lawsuit claims Nebraska’s ban is unconstitutional and violates equal protection and due process rights of individuals and couples like the Stewarts. “The effect of the ban is to prohibit people from being considered as foster parents out of the gate,” Leslie Cooper, an attorney with the ACLU, explained to Rewire. “It’s not even about people not being qualified. Anyone who wants to be a foster parent has to still go through the screening process, including criminal background checks and home visits. It’s extensive.”

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Cooper added that Nebraska’s policy goes against social services industry standards and reinforces baseless stereotypes about gay parents. “Nebraska’s policy is not the norm,” Cooper said. “Individual case assessments of a person is the industry norm. The only thing this policy is doing is throwing away good parents.”

Attorneys for the state deny that the rule is unconstitutional and argue the case should be dismissed because, they claim, the plaintiffs had not fully completed the application process nor had the state formally denied their requests to be foster parents. But District Court Judge John Colborn denied the state’s request and said the case should proceed.

According to the ACLU, Nebraska is one of three states to still have some kind of ban on adoptions or foster parenting by gay and lesbian individuals; Utah and Mississippi have similar parenting restrictions, many of which Cooper noted are the result of backlash from advancing civil rights within the gay community. “Many of these policies like Nebraska’s came up during the 1990s with the marriage debate in Hawaii. Florida had something similar too,” said Cooper. In 2010, the ACLU successfully defeated that ban.

Judge Colborn’s ruling in the Nebraska case did not address the substance of the ACLU’s constitutional claims, but instead allows the case to continue on through the evidence-gathering phase, known as discovery, and ultimately to trial. Those deadlines have not yet been set.