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Nebraska Supreme Court upholds ruling same-sex couples can adopt, compares state policy to ‘Whites Only’ sign

New Civil Rights Movement | April 10, 2017

Two years after the landmark Supreme Court Obergefell case that found same-sex couples do have the right to marry, it’s hard to think they would still be in court trying to adopt children, but welcome to Nebraska. Of all 50 states, the Cornhusker State had one of the most pernicious policies against same-sex couples, or even LGBT people, adopting.

In 1995 the then-director of the Nebraska Department of Social Services, Mary Dean Harvey, issued a policy memorandum mandating that “people who identify themselves as homosexuals” or even “unrelated, unmarried adults residing together” were banned from fostering children or adopting them.

On Friday the Nebraska Supreme Court upheld a lower court ruling that had struck down the ban, and admonished the State for its policy and for publishing the policy, known as Memo 1-95, on a state website, while claiming it was not enforced.

“Memo 1-95 was a published statement on DHHS’ official website that ‘heterosexuals only’ need apply to be foster parents,” Judge John Wright. ”It is legally indistinguishable from a sign reading ‘Whites Only’ on the hiring-office door. Memo 1-95 clearly excluded same-sex couples and individuals who identified as homosexuals either from being licensed or from having state wards placed in their homes.”

Judge Wright called that pernicious, decades-old policy “a barrier to equal treatment.” He also detailed one couple’s experience:

“After a significant delay in the progression of their case, they contacted the director as well as the chief executive officer of DHHS, who both either directly or indirectly confirmed the continuing force and effect of Memo 1-95.”

Vox reports the case “was brought on behalf of three couples, including Lisa Blakey and Janet Rodriguez, who’d been together more than eight years. They wanted to become foster parents but were barred from doing so because of both their sexual orientation and the fact they were unmarried. Another couple in the case, Todd Vesely and Joel Busch, began applying to become foster parents in 2008. According to court documents, they passed required background and home checks before they too discovered that they were prevented from becoming foster parents because of the state policy.”

Judge Wright also ruled that the State pay plaintiffs’ $174,000 legal expenses.

“This is a victory for children in Nebraska. This is a victory for LGBT Nebraskans,” ACLU of Nebraska Executive Director Danielle Conrad said in a statement. “Today in Nebraska love wins! Since the lower court ruling striking down Nebraska’s ban on gay and lesbian foster parents, our clients Todd and Joel have opened their hearts and homes to several children in need. There are tens of thousands of LGBT people who call the Cornhusker State home and thousands of Nebraska children in need of a foster care placement. This victory means that Nebraska’s motto of ‘Equality before the Law’ rings out more truly for all in our state.”

Ruling available at Equality Case Files

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