State Supreme Court Overturns Ban on Same-Sex Foster Parents

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The right of same-sex couples to marry has been the law of the land throughout the United State for almost two years, when the U.S. Supreme Court issued its decision in Obergefell v. Hodges. While the court noted in Obergefell that most states already allowed adoption and fostering by same-sex couples and gay or lesbian individuals, some states continue to prohibit it. The Nebraska Supreme Court recently issued a decision, Stewart v. Heineman, overturning a state policy prohibiting gay and lesbian people from serving as foster parents. While this ruling only applies to Nebraska, it is another important step forward for the rights of same-sex couples.

A federal district court struck down a Mississippi law banning adoption by same-sex couples last year, but no nationwide standard yet applies in this regard. A U.S. Supreme Court decision from 2016, E.L. v. V.L., held that states must recognize out-of-state adoptions by same-sex couples, but the Supreme Court has not considered the constitutionality of gay adoption or gay fostering bans within a state. A Nebraska policy regarding fostering therefore remained in effect after both Obergefell and E.L.

The Nebraska Department of Health and Human Services (DHHS) issued an administrative memorandum in 1995, titled Memo 1-95, directing the department not to make foster placements “in the homes of persons who identify themselves as homosexuals.” The memo further directed the department not to license such persons as foster homes. According to the Nebraska Supreme Court’s decision in Stewart, state officials had generally concluded that Memo 1-95 was unenforceable with regard to licensing.

A new director took over the DHHS Division of Children and Family Services in 2012 and established new foster home licensing procedures. The court called these the “Pristow Procedures,” using the director’s name. Under these procedures, “married, heterosexual couples” only needed the approval of a caseworker and their supervisor, while “homosexual applicants [had] five layers of placement review,” including “Pristow’s personal approval.”

The plaintiffs in Stewart were same-sex couples who alleged that Memo 1-95 violated their civil rights. The trial court ruled in their favor and ordered the memo removed from the DHHS website. On appeal, the defendants did not defend the constitutionality of Memo 1-95. Instead, they argued that the plaintiffs lacked standing to sue, since they had neither applied nor been rejected for a foster placement or license.

The Nebraska Supreme Court affirmed the lower court’s ruling. It cited a 2003 U.S. Supreme Court case, Gratz v. Bollinger, in finding that the plaintiffs did not have to establish direct harm from Memo 1-95, such as denial of a license. They only had to show that they were “able and ready” to apply for the benefit denied to them by the memo.

The court also cited a 1977 Supreme Court case, Teamsters v. United States, which held that the victims of an employer that posted a “Whites Only” sign “would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs.” The court therefore directly compared Memo 1-95 to that “Whites Only” sign.

A child custody case in New York City requires detailed planning and preparation. An experienced same-sex divorce attorney, with knowledge of this city’s family court system, can help you understand your rights and obligations. Ingrid Gherman has practiced family law in New York City for over 30 years and can advocate for you both in and out of court. To schedule a confidential consultation with a member of our team, contact us today online or at (212) 941-0767.

More Blog Posts:

New York Maintains Complicated Laws Regarding the Secrecy of Adoption Records, New York Divorce Attorney Blog, May 1, 2017

Changing Children’s Surnames in New York Family Law Cases, New York Divorce Attorney Blog, April 26, 2017

Changes in Washington Are Unlikely to Affect Same-Sex Marriage in New York City, New York Divorce Attorney Blog, February 4, 2017


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