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In the Best Interest of the Child: Arguing For LGBT Adoption Rights in Nebraska

JURIST Guest Columnist Amy Miller of the ACLU Nebraska discusses the recent challenge to Nebraska's ban on same-sex couple's rights to adopt and serve as foster parents...

Those practicing in family law—no matter which state you're in—are used to one simple formulation in cases involving children: what result is in the child's best interests? If that were the test used by the Nebraska Department of Health and Human Services ("DHHS"), there would be no need for the lawsuit filed last month challenging the state's categorical ban on any gay or lesbian person from being a licensed foster parent.

The suit, filed by the American Civil Liberties Union, the ACLU of Nebraska and the law firm Sullivan & Cromwell LLP, brings a constitutional challenge to the ban. The case is pending in the United States District Court for Nebraska and seeks relief under the Equal Protection Clauses and Due Process Clauses of the US and Nebraska Constitution.

DHHS first announced its rule by an internal administrative memo in 1995. It has never been promulgated as a regulation or statute, and could be voluntarily reversed as easily as it was passed. The memo prohibits DHHS from issuing foster care licenses to "persons who identify themselves as homosexuals" or persons who are "unrelated, unmarried adults residing together." The ban on unrelated unmarried adults residing together is another code for a gay couple, since Nebraska has a Defense of Marriage Act ("DOMA") constitutional amendment prohibiting same sex marriage.

It's not just an attack on gay couples, though—Nebraska's policy also excludes any gay or lesbian applicant, even if he or she is single, lives alone, and merely identifies openly as a gay person. There is simply no connection between the sexual orientation of a parent (foster parent or biological parent) and the parent's abilities to care for a child. Over 25 years of scientific research has proven that sexual orientation has no bearing on parenting ability and that children raised by gay parents are just as healthy and well-adjusted as other children. That's why all of the major children's health and welfare organizations—including the American Academy of Pediatricians, the American Psychological Association, the National Association of Social Workers, and the Child Welfare League of America—recognize that gay people can be good parents and thus have issued statements opposing restrictions like Nebraska's refusal to permit lesbians and gay men to act as parents.

Instead of a blanket exclusion of gay foster parents, social science experts tell us that each foster parent or couple needs to be evaluated on a case-by-case basis to determine which homes are safe, stable and nurturing. The rigorous individualized evaluation that happens right now for foster parent applicants would be adequate to identify foster parent applicants who have problems and frees the hands of caseworkers to select the best homes for children in need.

Nebraska's ban is particularly maddening to child advocates given the state's crisis in foster care. According to DHHS, there are nearly 4,000 children currently out-of-home and in need of a foster placement. "Out of home care" includes children in emergency shelters, group homes, juvenile detention centers, youth rehabilitation centers, foster homes and boarding schools or medical facilities. The state has an extremely high percentage of children in out of home care—one of the highest per capita in the nation. Some of the children need just a few months in foster care while their family stabilizes. Some of the children are moving towards permanent severance of the parental relationship and will become eligible for adoption. Foster families are needed for both short term and long term placement, and yet in this crisis of many children in need, Nebraska has chosen to eliminate an entire population of willing potential parents.

The most recent statistics available from the Nebraska Foster Care Review Office indicate 48 percent of Nebraska children in out-of-home care have been away from their families for a year or longer. That's a very long time to be in a cold institutional setting instead of in a home with a parent who provides individual care and attention every day. While DHHS has not yet filed an answer to the ACLU suit, these numbers make it difficult to imagine how the "best interests of the child" includes shutting the doors to warm loving homes.

Our case was filed on behalf of three couples who are ready and willing to be foster parents. Todd and Joel actually went through the state classes for foster parent applicants, passed the background checks and home inspection, and ultimately were denied only for their sexual orientation. Greg and Stillman already successfully fostered—and adopted—five children when they lived in California. Since Greg is a minister and Stillman is a social worker, they are particularly willing and capable of taking high risk children. Finally, Janet and Lisa hope to take in multiple children and provide a loving home. Lisa experienced foster care as a teen and knows firsthand the need for dedicated foster parents. These couples represent an untapped resource for children current experiencing multiple placements and the trauma of broken attachments.

While the best interests of the child should drive public policy on this issue, the legal test will turn on the constitutional claims brought by the plaintiffs. The suit argues the state's ban burdens the plaintiffs' fundamental right to intimate association by conditioning their eligibility to be considered a foster parent on foregoing their intimate relationship with their partners with whom they reside. The categorical exclusion on unmarried adults living together can only be complied with by ceasing to reside with their chosen partner, and thus is subject to heightened scrutiny.

Plaintiffs argue for heightened scrutiny for two reasons: first, because the DHHS ban is based on sexual orientation, which is a suspect class. The ban specifically targets a politically unpopular minority that have historically experienced unequal treatment and have been subject to discrimination for their sexual orientation. Second, even at any level of scrutiny, the suit argues the ban is not rationally related to the furtherance of any legitimate government interest. The ban does nothing to further the well-being or best interests of children in state care.

The Nebraska suit follows on the heels of successful attacks on similar bans on gay foster parents in Arkansas, Missouri and Florida.We can only hope Nebraska joins the vast majority of states who choose foster parents based on individual fitness rather than outdated stereotypes.

Amy Miller is Legal Director for ACLU of Nebraska, state affiliate of the American Civil Liberties Union.

Suggested citation: Amy Miller, In the Best Interest of the Child: Arguing For LGBT Adoption Rights in Nebraska, JURIST - Sidebar, Sept. 26, 2013, http://jurist.org/sidebar/2013/09/amy-miller-foster-ban.php.

This article was prepared for publication by Alexandra Cabonor, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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