Three same-sex couples sued Gov. Dave Heineman and two other officials on Tuesday over a longstanding state policy that prevents gay men and lesbian women from becoming foster parents or adopting children in state custody.
"The Nebraska policy that categorically excludes gay and lesbian individuals and couples from serving as foster and adoptive parents to children in state custody is unconstitutional," says the lawsuit filed in Lancaster County District Court by the Nebraska and national American Civil Liberties Union and lawyers from the New York City law firm of Sullivan & Cromwell.
The policy was laid out in 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.
"It is my decision that, effective immediately, it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify themselves as homosexuals," the memo said, adding that "this state's direction and intent is for placement of children in the most family-like setting."
The policy prohibits HHS from issuing foster home licenses to or placing children with “persons who identify themselves as homosexuals” or persons who are “unrelated, unmarried adults residing together.”
"The policy also has the effect of categorically banning gay and lesbian individuals and couples from adopting children from state custody because, before individuals may adopt children from state care, they must first be licensed as foster parents," the suit says. "Under the policy, gay and lesbian individuals and couples are disqualified from fostering or adopting children in state custody regardless of their ability to care for a child -- indeed, they are not even permitted to apply to undergo the screening process that would assess their suitability as a parent -- and regardless of the needs of children.
"Despite the critical need for more foster and adoptive families to meet the needs of children in state care, this policy deprives our state’s most vulnerable children of access to countless loving families … who are willing and able to care for them," the lawsuit says. "The blanket exclusion of gay and lesbian individuals and couples from consideration as foster and adoptive parents violates their right to equal protection and substantive due process under the constitutions of Nebraska and the United States by discriminating against them based on their sexual orientation and intimate relationships without justification for this disfavored treatment."
Amy Miller, legal director of ACLU Nebraska, said, "The state assumes that all gay people are unfit to parent. …
"Decades of scientific research confirms that gay and heterosexual people make equally good parents and that the outcomes for children raised by gay couples are no different than their peers," she said, noting the state has a desperate need for foster parents.
One of the couples among the plaintiffs, Greg and Stillman Stewart of Lincoln, adopted five children who now range in age from 13 to 20 from the California foster care system before moving to Nebraska
“When we moved to Nebraska, we felt we could welcome other children in need of families now that our kids are grown," Greg Stewart said. "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.”
The lawsuit says the policy's "blanket exclusion of gay and lesbian individuals and couples from fostering and adopting cannot survive any level of constitutional scrutiny because it is not rationally related to the furtherance of any legitimate government interest.
"The equal suitability of gay and heterosexual parents is a matter of scientific consensus and is recognized by the leading national professional groups dedicated to children’s health and welfare, including the American Academy of Pediatrics, the American Psychological Association, the American Medical Association, the National Association of Social Workers, and the Child Welfare League of America," the suit says.
Leslie Cooper, a lawyer with the national ACLU, said similar restrictions had been struck down by courts in Arkansas, Florida and Missouri.
"We are confident that when the (Nebraska) court hears the evidence, it will reach the same conclusion" Cooper said.
Heineman's office referred a request for comment to the attorney general's office, where spokeswoman Anita Scheuler said: "Our office is tasked with defending the state, and we will do so vigorously."
An HHS spokeswoman did not immediately respond to a request for comment.
Other defendants to the lawsuit are Kerry Winterer, the chief executive officer of HHS, and Thomas Pristow, director of the Nebraska Division of Children and Family Services.
Nebraska lawmakers are expected to debate a bill (LB385) next session that would allow placement of foster children with gay or lesbian relatives or people with established relationships with a child.
The bill would help ensure all families willing to provide a loving home to abused or neglected children are given fair and equal consideration, said its sponsor, Omaha Sen. Jeremy Nordquist.
The bill prohibits discrimination based on sexual orientation when determining the suitability of a placement or in issuing a foster care license. Nordquist said it would help remove barriers to placing children with someone they know who is lesbian, gay, bisexual or transgender. Children tend to do better in homes in which they know or are related to caregivers, he said.