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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.
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