Nebraska Supreme Court Unanimous on Gay Fostering

[DIGEST: Omaha World Herald, Slate, Reuters]

With sweeping language, the Nebraska Supreme Court unanimously upheld a lower court decision affirming the right of same-sex couples to foster children. Nebraska was the last state in the country to have such a ban.

The decision was a result of Memo 1-95, a law passed in 1995 which prohibited same-sex couples from becoming foster parents. The memo also banned same-sex individuals from adopting, because Nebraskans can only adopt children from state care if they have been licensed as foster parents.

In 2013, three same-sex couples, represented by the ACLU and the law firm Sullivan & Cromwell, successfully alleged in the state district court that the ban violated their 14th Amendment rights to equal protection and due process.

The state appealed the decision, arguing not that the court was wrong in finding the law violated the Constitution, but that the couples didn’t have standing to sue because they had not applied for (and been denied) foster care licenses.

On Friday, the Nebraska Supreme Court rejected the state’s appeal. In affirming the lower court’s decision, the court found that the plaintiffs were harmed even though they had not been denied the opportunity to foster.

“The harm the plaintiffs wish to avoid is not just the possible, ultimate inability to foster state wards,” the court wrote. “[I]t 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. The imminent injury that the court redressed was the plaintiffs’ inability to be treated on equal footing with heterosexual applicants.”

The court likened the memo to posting a “Whites Only” sign on a hiring-office door. “Memo 1-95 was a published statement on DHHS’ official website that ‘heterosexuals only’ need apply to be foster parents. It is legally indistinguishable from a sign reading ‘Whites Only’ on the hiring-office door.”

This statement of exclusion prevented non-heterosexual applicants from applying, because they “considered any further action to be futile and did not wish to subject themselves to the humiliation or rejection and the stigmatic harm of unequal treatment,” the court continued.

Finding no merit in the state’s position, the court also required that the state pay the couples’ court costs and attorney fees—nearly $174,000.

State Attorney General Doug Peterson said in a statement that the appeal brought up “legitimate jurisdictional issues that needed to be considered by the court. The court has ruled.”

Danielle Conrad, Executive Director of the ACLU of Nebraska, called the decisions a “victory for children and LGBT Nebraskans.” “This victory means that Nebraska’s motto of ‘Equality before the Law’ rings out more truly for all in our state.”

Noting the historical moment of the falling of the last ban on gay foster parents, Leslie Cooper of the ACLU LGBT & HIV Project said: “The era of states baselessly branding LGBT people unfit to parent is over. Children in the foster care system are no longer needlessly denied access to available loving families.”