Nebraska Judge Throws Out Anti-Gay Adoption, Foster Care Policy

A county judge in Nebraska has ruled that the state’s policy for approving adoptions of state wards and licensing eligible foster parents violates the rights of gay people and same-sex couples.

Lancaster County District Judge John A. Colborn’s August 5 ruling invoked the Supreme Court’s marriage equality decision in Obergefell v. Hodges but did not explicitly spell out why that compelled the ruling he made.

The lawsuit was initiated in 2013 by three same-sex couples who had been told during the previous several years that they could not be certified to be foster parents because of a 1995 policy adopted by the state’s Department of Health and Human Services (DHHS) stating that foster home licenses may not be issued to “persons who identify themselves as homosexuals” or to “unrelated, unmarried adults residing together.” The apparent intent of this policy was to institute a Don’t Ask, Don’t Tell policy under which staff would not ask about sexual orientation or marital status apart from inquiries already included in the licensing application and home study forms.

Citing marriage equality ruling, court says officials must formalize practices they insist are fair

Ever since mid-2012, DHHS appears to have acted in fits and starts over the question of whether the 1995 policy should remain in effect. It was deleted from the department’s website this past February after a federal district court ruled that the state’s same-sex marriage ban was unconstitutional, but the policy was never formally rescinded in writing. According to evidence introduced by the plaintiffs — including statements by some operational officials at DHHS — there is considerable confusion within the agency and among agency contractors about the status of this policy and gay couples continue to be routinely denied certification as foster parents.

Judge Colborn rejected the agency’s contention that removal of the policy from the website and the agency’s verbal assurance to the judge that the policy was no longer in place was sufficient to make this case go away. In fact, he found there is evidence that the agency, despite its disavowals, imposes a higher level of scrutiny on gay and same-sex couple applicants than on other applicants.

“Pursuant to the holding of the United States Supreme Court in Obergefell v. Hodges,” Colburn concluded, the 1995 policy “should be stricken as it violates the Equal Protection and Due Process Clauses.”

Regarding the unwritten policy which has caused so much confusion, the judge wrote that state officials “have not argued, nor have they identified, any legitimate governmental interest to justify treating gay and lesbian individuals and gay and lesbian couples differently than heterosexual individuals and heterosexual couples in this review process.” In fact, he noted, the agency claimed it wasn’t treating them differently, but the testimony belied that assertion.

At the same time, the agency made the laughable argument that the extra level of scrutiny on approving gay applicants was intended to “prevent bias against those persons.” But, the judge found, only successful applications that reach the agency’s highest levels are subject to additional review, not those that are rejected. “It is not logical that a procedure could prevent bias when it does not deal with placements that were rejected, or not recommended, during one of the previous four stages of review,” Colborn wrote. “If the Defendants wanted to prevent bias against gay and lesbian couples, as well as unmarried adults residing together, Defendants would review denials of placements rather than approvals of placements.”

The court found that the agency acknowledged that there was “no child welfare interest advanced by treating gay and lesbian persons differently from heterosexual persons in decisions regarding licensing or placement in foster or adoption homes.” That being the case, Colborn once again cited the requirements of Obergefell v. Hodges in bolstering his decision.

The court ruled that the agency must treat gay and non-gay applicants the same, and same-sex and different-sex couples the same. Of course, in the post-Obergefell world, the state and its agencies must treat married same-sex couples the same as married different-sex couples as a matter of constitutional law.

Specifically, Colborn ruled that the agency must formally rescind the 1995 policy and replace it with a memo stating a constitutionally appropriate version of an inclusive policy. The absence of a written policy clearly creates confusion within the agency and may provide too much unguided discretion to lower level agency functionaries to discriminate against gay applicants, Colborn found.

Given the state’s reluctant acquiescence to Obergefell and Republican Governor David Heineman’s opposition to gay rights in general and gay parenting in particular, it seems likely the state will pursue an appeal of Colborn’s decision, notwithstanding DHHS claims of acting even-handedly.