In the advent of United States v. Windsor this summer, most public and media attention was focused on those lawsuits challenging bans on same-sex marriage across the country. Lost in all the marriage emphasis was a challenge to an 18-year-old policy of the Nebraska Department of Health and Human Services banning the licensing of foster parents who are gay or living with an unmarried partner. The ACLU filed the challenge last month. The ACLU LGBT Project has been the main organization challenging outright adoption and foster parenting bans around the country, with great success in Florida and Arkansas in the last several years. Because anyone who wishes to adopt a child in the custody of HHS must first be licensed as a foster parent, the policy effectively bans adoption of children in state care. The 1995 administrative memorandum establishing the policy notes that children were not to be removed from existing placements, that case-by-case assessment was permitted when a child was being placed with a relative who was gay or living with an unmarried partner, and that applicants were not to be directly asked their sexual orientation. The ACLU's Complaint notes that HHS would not have left children with gay foster parents, or made such placements under some conditions, if it had concluded that no gay person or couple could provide a suitable foster home.
The lead plaintiffs, Greg and Stillman Stewart, adopted five children from the California foster care system before moving to Nebraska in 2011. When they applied to foster children there, they were turned down. The Complaint cites a June 2013 state report documenting almost 4000 children in out-of-home placement, including over 900 in group homes, treatment and detention facilities, and emergency shelter care. It also notes that in April 2011, the US Department of Health and Human Services distributed to state agencies a memorandum advising agencies to recruit and train the "largely untapped resource " of gay men and lesbians willing to adopt children. (More evidence of President Obama's commitment to LGBT issues).
The causes of action in the Complaint include discrimination on the basis of sexual orientation and violation of the consitutionally protected right to maintain intimate relationships, under both the Nebraska and US Constitutions. The ACLU brought the case in a state trial court, which puts the case on track to be heard, in the end, by the Nebraska Supreme Court. By contrast, a case filed in the federal District Court would have gone on appeal to 8th Circuit Court of Appeals. One of the most fascinating aspects of LGBT rights litigation for the past 25 years has been watching advocates choose between state and federal courts. The only federal appeals court to examine an outright ban on LGBT adoption was the 11th Circuit, and they rejected every argument made by the ACLU on behalf of a stellar set of plaintiffs who were already raising children in Florida but were prohibited from adopting them. The Florida ban was ultimately struck down in the state courts. The Arkansas ban was also struck down in state courts.
I'm very enthusiastic about this litigation, but I have one gripe. Since anyone living with an unmarried partner is banned from fostering, I wish one such person was among the plaintiffs. I would even like to see a single gay man or lesbian included. But I am especially pleased that the Complaint does not argue that the ban is unconstitutional specifically because same-sex couples cannot marry. That argument, which the ACLU is making in its challenge to North Carolina's ban on second-parent adoption, implies that it would be constitutional to ban unmarried couples from adopting as long as same-sex couples were permitted to marry. This diversion from the decades long emphasis on individual assessment of foster and adoptive parents without regard to their sexual orientation or marital status, an emphasis that focuses on the needs of the children for loving homes, strikes me as an unfortunate consequence of the incessant emphasis on marriage in LGBT rights advocacy.
At this point Nebraska will just look foolish trying to defend its ban. That doesn't mean it won't try.
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