Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.
A Nebraska policy that prevents gays and lesbians from adopting children or serving as foster parents is unconstitutional, the Nebraska Supreme Court affirmed April 7 ( Stewart v. Heineman , 2017 BL 114901, Neb., No. 16-018, 4/7/17 ).
The court’s holding will allow gay and lesbian individuals and couples to be evaluated for foster care or adoption under the same standard—the best interests of the child—as heterosexual individuals and couples, starting immediately.
Here, three same-sex couples sued the governor and various state agencies, alleging an administrative memo that stated that “children will not be placed in the homes of persons who identify as homosexual” violated their equal protection rights.
The lower court agreed with the plaintiffs. On appeal, the state argued that there was no legal controversy because the couples hadn’t applied to be foster parents and thus weren’t harmed.
They also claimed that there was no longer a controversy because they had removed the memo from their website.
The case presents a real controversy, not a hypothetical situation not fit for judicial resolution, Judge John F. Wright wrote for the court.
It would have been futile for the couples to apply, the court said.
The memo stated that “‘heterosexuals only’ need apply to be foster parents. It is legally indistinguishable from a sign reading ‘Whites Only’ on the hiring door,” the court said.
The couples didn’t want to suffer the “stigmatic harm of unequal treatment” and didn’t need to, it said.
Furthermore, one couple actually did begin the application process, but encountered a three-year delay, the court said.
“Clearly” they don’t have to suffer more “personal rebuffs” to demonstrate their stake in this action, it said.
And the state’s “eleventh-hour removal” of the memo from its website doesn’t moot the claims, the court said.
Once sued, a defendant can’t simply claim that it voluntarily ended its unlawful conduct so that the controversy no longer exists, it said.
The defendant “bears the formidable burden” of showing that the conduct couldn’t reasonably be expected to recur, the court said.
The defendants here “made no attempt to meet this standard,” it said.
Judges Michael G. Heavican, Lindsey Miller-Lerman, William B. Cassel, Stephanie F. Stacy, Max J. Kelch and Jeffrey J. Funke joined the opinion.
The American Civil Liberties Union Nebraska Foundation, Inc., and Sullivan & Cromwell, LLP, represented the couples.
The state attorney general’s office represented the defendants.
To contact the reporter on this story: Melissa Heelan Stanzione in Washington at email@example.com
To contact the editor responsible for this story: Jessie Kokrda Kamens at firstname.lastname@example.org
Full text at http://src.bna.com/nOr.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to email@example.com.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to firstname.lastname@example.org.
Put me on standing order
Notify me when new releases are available (no standing order will be created)