ACLU suing state over ban on gay foster parents

Todd Vesely and Joel Busch

LINCOLN — Joel Busch and Todd Vesely passed all the training and home studies and background checks to become foster parents five years ago.

Greg and Stillman Stewart already have adopted five foster children — in California.

Lisa Blakey and Janet Rodriguez want to offer a better home for foster teenagers than Blakey lived through as a youngster.

But none of the couples can take in foster children under an 18-year-old state policy banning unrelated, unmarried couples and openly gay people from becoming foster parents.

The three Lincoln couples went to court Tuesday to challenge the Nebraska policy as unconstitutional.

The American Civil Liberties Union and ACLU of Nebraska filed a lawsuit on their behalf in Lancaster County District Court.

Leslie Cooper, senior staff attorney for ACLU, said the policy violates the couples’ right to equal protection and their right to due process under both the state and federal constitutions.

“Because banning lesbians and gay men from being foster parents furthers no child welfare purpose and, instead, works against the interests of children by denying them access to loving families, this policy is unconstitutional,” Cooper said.

Defendants include Gov. Dave Heineman, Kerry Winterer, CEO of the Department of Health and Human Services, and Thomas Pristow, children and family services director for HHS.

Heineman’s spokeswoman, Jen Rae Wang, noted the policy dated to former Gov. Ben Nelson’s administration but declined to comment further because of the lawsuit.

A spokeswoman for Attorney General Jon Bruning said: “Our office is tasked with defending the state, and we will do so vigorously.”

The HHS policy has been in place since 1995, when a former department director issued an administrative memo.

It prohibits unmarried, unrelated adults who live together from being considered as foster parents, which includes homosexual couples, unmarried heterosexual couples and platonic roommates.

The policy also bars children from being placed in the homes of “persons who identify themselves as homosexuals,” whether those people live with a partner or not. Single people are not otherwise prohibited from being foster parents.

Cooper said the policy harms children in need of safe, loving, stable families by turning away qualified couples.

“They could take in a passel of kids tomorrow,” she said of the plaintiffs.

Busch, a store manager, and Vesely, a retired Marine, had applied to be foster parents in 2008 and completed all the steps, only to have their application rejected. State officials refused to waive the policy for them.

The Stewarts, who were married in California in 2008, have five adopted children ages 13 through 20. All five were adopted from the foster care system and came into their home with medical, cognitive and behavioral issues, after experiencing years of abuse and multiple foster placements.

The two oldest are now in college, and the others are doing well in school.

“Where others saw damaged goods, we saw diamonds in the rough,” said Greg Stewart, who is a minister. Stillman Stewart works with at-risk, developmentally delayed and behaviorally challenged children at a middle school.

But their marriage is not recognized in Nebraska and they are barred from fostering children in the state.

Blakey and Rodriguez, a state employee and insurance claims processor, respectively, have wanted to foster children together since their relationship began eight years ago.

The desire is personal for Blakey, who spent time in foster care during middle school.

She said the experience was traumatic and she wants to help other children avoid the same fate.

But Dave Bydalek, speaking for the advocacy groups Family First and the Nebraska Family Council, questioned the legal basis for the lawsuit. He said people do not have a right to become foster parents and Nebraska should win the suit if it can show the policy has a rational basis.

He argued that the state does have a legitimate interest in promoting stability by placing children with people who are legally connected with each other.

Bydalek also said the issue should be debated in the Legislature, not the courts.

Cooper said courts in three states — Arkansas, Florida and Missouri — have struck down policies similar to Nebraska’s in recent years.

Nebraska and Utah now are the only two states with formal restrictions on gay and lesbian people being foster parents.

A state constitutional amendment passed in 2000 prohibits same-sex couples from marrying or from having their marriage in another state or country recognized in Nebraska.

Amy Miller, legal director for ACLU of Nebraska, said the new lawsuit is not directed at the marriage ban.

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