Nebraska Supreme Court

From left, Nebraska Supreme Court Judges William Cassel and John Wright, Chief Justice Michael Heavican, and Judge Lindsey Miller-Lerman listen during arguments held at Omaha South High School on March 30.

LINCOLN — Three same-sex couples who successfully challenged a policy banning the placement of foster children with gay parents saw their victory affirmed Friday by the Nebraska Supreme Court.

The court’s unanimous opinion also upheld the payment of nearly $174,000 in costs and attorneys fees to the couples, who won a previous decision striking down a policy instituted decades ago by the Nebraska Department of Health and Human Services.

The 1995 policy prevented the placement of foster children with those “who identify themselves as homosexuals.” It also applied to unmarried heterosexual couples.

In 2015, Lancaster County District Judge John Colborn ruled for the couples, saying the state’s policy violated their constitutional right to equal protection.

Nebraska Attorney General Doug Peterson appealed that decision, arguing the couples were actually not denied a foster placement, and therefore, they did not have standing to sue.

The Supreme Court found no merit to the state’s appeal.

“The harm the plaintiffs wish to avoid is not just the possible, ultimate inability to foster state wards; it is the discriminatory stigma and unequal treatment that homosexual foster applicants and licensees must suffer if they wish to participate in the foster care system,” stated the unanimous opinion, written by Judge John Wright.

Peterson’s office issued a statement Friday afternoon saying the appeal brought up “legitimate jurisdictional issues that needed to be considered by the court. The court has ruled.”

The attorney general did not challenge the constitutional issues decided in the 2015 ruling. Rather, he asked the Supreme Court to find that the lower court should have dismissed the lawsuit because by the time it was filed in 2013, Nebraska was no longer enforcing the ban on gay foster parents.

The Supreme Court rejected the position, saying HHS had not formally rescinded the policy by 2013. In fact, records showed the department continued to display the policy on its website until 2015. As a result, there was confusion among members of the public and HHS staff members about whether the long-standing policy still was in force.

“This is a victory for children in Nebraska. This is a victory for LGBT Nebraskans,” said Danielle Conrad, executive director of the ACLU of Nebraska, which filed the lawsuit on behalf of the couples.

The high court also affirmed the lower court’s order that the state pay the costs and attorneys fees of the couples.

The lawsuit was brought by Joel Busch and Todd Vesely, who passed the training and home studies to become foster parents; Greg and Stillman Stewart, who had previously adopted five foster children in California; and Lisa Blakey and Janet Rodriguez.

Since the 2015 ruling, Busch and Vesely have since been able to open their home to help children in need, Conrad said Friday.

Critics of the 2015 ruling said it was too broad. They also said it should be up to HHS to give priority to heterosexual married couples, arguing that children do best in such arrangements.

To see the full opinion, click on Stewart v. Heineman in this link: https://supremecourt.nebraska.gov/sc/opinions/2017-04-07

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