May 01, 2017

Nebraska Supreme Court Allows Claims of Same-Sex Couples Denied Ability to Become Foster Parents

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Stewart v. Heineman, 296 Neb. 262 (2017). 

Three couples filed suit against the state of Nebraska based on a Department of Health and Human Services’ (DHHS) memorandum restricting gay and lesbian individuals and couples from being considered as foster or adoptive parents. The lower court required the policy to be rescinded and prevented the state from enforcing similar bans. The state argued that the couples’ claims were not ripe and were moot. The Nebraska Supreme Court disagreed, holding the claims were ripe for review and were not rendered moot by the state’s actions. 

Three same-sex couples filed suit because a 1995 administrative memorandum (Memo 1-95) prohibited them from becoming foster parents. Each couple was able and willing to become foster parents, however Memo 1-95 restricted gay and lesbian individuals and couples from being considered or selected as foster or adoptive parents. 

The reasons for this policy were that the state intended to place children in the most “family-like setting” and was trying to uphold the Nebraska constitution. One of the three couples had married in a different state and contacted DHHS about becoming a licensed foster home. They were told same-sex couples were barred from becoming licensed under DHHS policy. Another couple began the application process by completing trainings, a home study, and background checks only to be told by the DHHS director that it was policy to bar licensing unrelated adults living together, referencing Memo 1-95. 

Memo 1-95 could be found on DHHS’ website until shortly after the couples filed for summary judgment. Additionally, evidence showed a new unofficial policy was in place called the Pristow Procedure. The Pristow Procedure was announced verbally by a DHHS director and required any application for foster care licensure by a same-sex couple go through five tiers of approval, more than any other applicants, ending with the approval of the state DHHS director. This procedure was orally instructed when issues arose but otherwise Memo 1-95 was presented at trainings and continued to exist as policy on DHHS’s website. 

The state argued the couples lack standing because they had not applied and been denied foster care licenses and placement. However, the court viewed the argument as one of ripeness. To determine ripeness the court examined the fitness of the issues for judicial decision and the hardship to the couples if the court did not consider the case. Asking for declaratory and injunctive relief met the fitness for judicial decision requirement. The court found the injury in this equal protection case was the “imposition of a barrier that makes it more difficult for members of one group to obtain a benefit, rather than the ultimate inability to obtain the benefit.” The court viewed the harm to these couples as more than the inability to foster children. They would also suffer discriminatory stigma and unequal treatment if they participated in the foster care program. 

The court likened the ripeness of this case to the U.S. Supreme Court case Teamsters v. United States, 431 U.S. 324 (1977), an employment discrimination case involving a “whites only” sign on a hiring officer’s door. That case was to be heard by only requiring evidence that applicants were deterred by a discriminatory practice and would have applied but for that practice. The court in this case said Memo 1-95 was “legally indistinguishable from a sign reading ‘whites only’ on the hiring-office door.” The court held this case was ripe for review because there was a barrier to equal treatment and serious noneconomic injuries the couples would be subjected to when they applied to become foster parents. 

On the issue of mootness, DHHS argued because the policy had been taken off the website it therefore was no longer represented as official policy or practice. To determine whether the issue was moot the court looked at whether the couples had legal interest in the case outcome or would no longer benefit from the case outcome. Despite the new Pristow Procedure changing the application of Memo 1-95, the memo was intentionally kept on the website and not communicated publicly. The court held a “secret change in policy or procedure cannot moot an action based on published [exclusionary] policy statement.” Additionally, the court noted a defendant could not automatically moot a case simply by ending the unlawful conduct once a suit is brought.