Judge Rules Nebraska’s Ban On Gay And Lesbian Foster Parents Is Unconstitutional


Nebraska judge rules that banning same-sex couples from becoming foster parents is unconstitutional. So is making them go through more hoops than heterosexual couples.

On Wednesday, a state judge struck down a Nebraska policy that banned same-sex couples from providing foster care or adopting state wards. Citing the recent Supreme Court ruling that legalized marriage equality across the country, Lancaster County District Judge John Colborn ruled that Nebraska’s policy violated the Constitution’s equal protection and due process clauses.

The policy dated back to 1995 and prevented unmarried, unrelated couples that lived together from becoming foster parents or adopting state wards. In 2012, the state Department of Health and Human Services (HHS) technically stopped enforcing the ban, but same-sex couples still had to undergo additional layers of scrutiny and approval not required of married heterosexual applicants.

According to Omaha.com, under the current policy that was just ruled unconstitutional, same-sex couples had to pass five levels of scrutiny by the department’s director of children and family services. That’s three levels more than heterosexual individuals or married couples, and it’s even above and beyond what was required of convicted felons.

“I can’t understand why we would have to go through a higher level of scrutiny than a criminal,” said Lisa Blakey, one of the plaintiffs in the lawsuit who has been with her wife, Janet, for 10 years. “I am not a criminal. My wife is not a criminal.”

Judge Colborn agreed and ruled that state licensing procedures have to be the same for all foster care applicants, regardless of sexual orientation or marital status. “Defendants have not argued, nor have they identified, any legitimate government interest to justify treating gay and lesbian couples differently than heterosexual individuals and heterosexual couples in this review process,” he said in his ruling.

Lisa and Janet hope to be foster parents soon. “We’ve wanted to share our home with kids for years,” Lisa said. “Now we finally get that opportunity.”

Danielle Conrad, Executive Director of ACLU Nebraska, gave the following statement on their website:

Nebraska's motto of 'Equality before the Law’ rings out more truly for all of us on this thrilling day. This is a special victory for thousands of children in Nebraska who now have more options to find loving and stable homes.

The couples in our case, like thousands of other gay and lesbian Nebraskans, have demonstrated their ability to provide loving homes for children. We are grateful for the court's unequivocal, broad, and positive opinion in favor of LGBT Nebraskans constitutional rights to be full participants in our child welfare system.

Nebraska finally joins America in ending state sponsored discrimination in policy and practice that hurt Nebraska families and that prevented children in need from accessing loving and stable foster families.


Image by Elvert Barnes via Flickr and a CC license