The ACLU has launched a new lawsuit challenging Nebraska’s ban on gay foster parents, representing three couples who have been blocked from offering foster kids a home for no other reason than their being same-sex partners.
It is estimated that there are more than 3,800 children in the foster care system in Nebraska. Despite this fact, Nebraska has strict regulations as to who can be a foster parent, banning cohabiting couples and same-sex couples.
The ACLU is suing to change that policy on behalf of same-sex couples Greg and Stillman Stewart, Lisa Blakey and Janet Rodriguez, and Todd Vesely and Joel Busch, all of whom reside in Lincoln and would most likely qualify as foster parents if the arbitrary ban on same-sex couples fostering was not in place.
“We know first-hand the pain children experience when they are put through the trauma of multiple failed placements,” Greg Stewart is quoted as saying. “When we moved to Nebraska, we felt we could welcome other children in need of families now that our kids are grown. But when we called HHS to apply to become foster parents, we were told that despite our experience raising five wonderful children, we were not eligible.”
Nebraska’s ban on same-sex couples fostering manages to be at turns implicit and explicitly anti-gay.
Due to a Health and Human Services (HHS) memorandum issued in 1995, the state bans persons who are “unrelated, unmarried adults residing together” from fostering. Due to a constitutional amendment approved at the ballot in 2000, the state cannot recognize same-sex marriages or civil unions, meaning that this HHS policy automatically bars same-sex couples from fostering and, as a point of interest, joint adoption.
The HHS was not content to stop there, however, and also included specific language saying the department is prohibited from placing children with “persons who identify themselves as homosexuals.”
Defendants in the suit include Governor Dave Heineman, Kerry Winterer of the Department of Health and Human Services, and Thomas Pristow, who acts as children and family services director for the HHS. A spokeswoman for Nebraska State Attorney General Jon Bruning is quoted as saying “Our office is tasked with defending the state, and we will do so vigorously.”
The suit will argue that all credible child welfare groups and psychological and scientific organizations support the fact that same-sex parent families raise children at least as well as their heterosexual counterparts, this despite state and federal laws denying them access to many of the rights and privileges given to straight parents.
There is also a firm legal basis for this challenge. Other courts have struck down bans similar to Nebraska’s, with courts in Arkansas, Missouri and Florida deeming the the bans unconstitutional. Utah and Mississippi currently have similar bans in place.
The suit contends Nebraska’s anti-gay policy harms children by denying them prospective parents, and harms their clients by denying them equal treatment under the law.
While this challenge does not mention marriage equality, it is undeniable that a win against this ban would strike directly at the heart of what is usually used as a rationale for prohibiting same-sex couples from marrying: that straights-only marriage benefits children the most.
Of course, a wealth of evidence suggests otherwise, and once that is established by the state’s courts, Nebraska’s marriage equality ban would be on even shakier ground than it is already. Indeed, lawmakers in the state have already recognized this issue and are attempting to remedy the inequality.
A bill authored by Omaha Senator Jeremy Nordquist would partially answer this issue by allowing foster children to be placed with gay or lesbian relatives and people in long term established relationships. The bill has now been amended and is heading toward a final vote but it is unclear how much support the bill has. The filing of this lawsuit does throw down the gauntlet though, urging the Legislature to act or face a court mandate.
Senator Brad Ashford has also called for the Legislature’s judiciary committee to examine the state’s constitutional ban on marriage equality and specifically whether there is scope to recognize same-sex marriages that were conducted out of state.
Those wider issues aside, this lawsuit attempts to remedy a very specific issue: why the state is arbitrarily banning foster parents based on sexual orientation.
“The state individually screens all applicants before placing children in their homes. The only thing this policy does is turn away people who would make good foster and adoptive parents,” Leslie Cooper, senior staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project, is quoted as saying. “This law has nothing to do with children’s welfare and everything to do with discrimination.”
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