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Nebraska Supreme Court Ends State’s Anti-LGBT Adoption/Foster Policies

Posted on: April 12th, 2017 by Art Leonard No Comments

The seven-member Nebraska Supreme Court has unanimously affirmed a decision by Lancaster County District Judge John A. Colborn that a formal published policy adopted by the state in 1995 banning adoptions or foster placements into any household with a “homosexual” in residence was unconstitutional, as was an informal policy adopted more recently by chief executive officers of the state’s Department of Health and Human Services under which “exceptions” could be made in particular cases by personal order of the department’s director.

Ruling on a case brought by the ACLU on behalf of some same-sex couples who sought to foster or adopt children but were either discouraged by Department staff members or deterred by the formal policy posted on the Department’s website, Stewart v. Heineman, 296 Neb. 262, the Supreme Court focused mainly on technical issues, as the state apparently conceded that there was no good reason to single out gay and lesbian adults for discriminatory treatment and sought to persuade the court that the case was “moot” and should be dismissed, preferably without awarding costs and fees to the plaintiffs. The trial judge awarded costs and fees totaling more than $175,000, an amount that will increase if fees are later awarded to the plaintiffs for successfully defending their victory in the state supreme court.

The lengthy opinion by Justice John F. Wright is devoted almost entirely to refuting ridiculous arguments mounted by the state to try to convince the court that it lacked jurisdiction to decide the case, rather than to repeating in any detail the evidence presented to the district court about the parenting abilities of lesbians and gay men and the wholesome, well-adjusted children they have raised when given the opportunity to do so.

The complaint the ACLU filed centered on Memo 1-95, an administrative memorandum written by the director of the Department of Social Services (which later became the Department of Health and Human Services) in 1995. The memo stated: “It is my decision that effective immediately, it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify themselves as homosexuals.  This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexuals.”  The memo adopted a similar policy regarding “unmarried heterosexual couples.”  The memo “directed staff not to specifically ask about an individual’s sexual orientation or marital status beyond those inquiries already included in the licensing application and home study,” wrote Justice Wright.  “The stated reason for the policy was this State’s intent to place children in the most ‘family-like setting’ when out-of-home care is necessary,” Wright continued.  The memo contemplated that a formal regulation incorporating its policy decisions would be adopted, but this did not happen.

In fact, there is no formal statutory or regulatory ban on gay people being foster or adoptive parents in Nebraska, as such. Thus, the entire focus of the lawsuit and the court opinions was on the “policy” expressed in Memo 1-95 and subsequent “practices” adopted by the director of the department.

The Memo was posted on the Department’s website as a formal policy statement, and was not removed from the website until after this lawsuit began and motions for summary judgment had been filed with Judge Colborn. The Memo was used in training new staff members, and was referred to specifically by staff members when they discouraged one of the couples from formally applying to get a foster child, which is a prerequisite in Nebraska to legal adoption.

Part of the state’s defense in this case was that although Memo 1-95 continued to appear on the website, it was no longer the actual policy of the Department, as recent chief executive officers had determined that lesbian and gay applicants otherwise qualified to serve as foster or adoptive parents should be allowed to do so. However, this informal policy was not well publicized throughout the department, formal instructions were not issued at the line staff level, and no mechanism for appealing denials based on an applicant’s sexual orientation was created.

Under this “practice,” which was referred to throughout the opinion as the Pristow Procedure, after Thomas Pristow, director of the Division beginning in March 2012, if gay applicants were approved at the line staff level, the approval had to go through four layers of sign-offs, including by Pristow himself. No other potentially controversial placements, such as those with unmarried heterosexual parents or with former prison inmates, had to go through so many layers of approval, and only placements with “homosexuals” had to be personally approved by the director.

An earlier form of this policy “exception” was first adopted by Todd Reckling when he was director in June 2010, expressed in a letter to two gay men, Todd Vesely and Joel Busch, who had begun the process of qualifying to be foster and adoptive parents in 2008, completing the training program. Reckling wrote them that the division’s policy was to bar licensing unrelated adults living together, referring to Memo 1-95, but that the division’s policy “allows for an exception” under which one member of an unmarried couple might be licensed, but Reckling’s letter “gave no indication that such an exception would be made in their case” because, as Reckling explained, “second parent adoptions” were not permitted in Nebraska involving unmarried couples, and Todd and Joel could not marry because of Nebraska’s anti-gay marriage constitutional amendment.   Neither would their marriage be recognized if contracted out of state.

One of the state’s incredible arguments was that the plaintiffs did not have standing to bring the lawsuit because none of the couples had formally applied and been turned down. This was a nonsensical argument, since it was clear that any gay couple applying had to be rejected under the formal policy posted on the website and taught to staff members.  In reviewing the deposition testimony of the various directors of the division and other staff members, as well as their internal written communications, the court uncovered the entire history of developments within the department as this issue unfolded.  When pressed about why Memo 1-95 remained for so long on the website despite insistence by some of the witnesses that it was no longer the “practice” of the division, witnesses intimated that they wanted to prevent the possibility that a formal withdrawal of the memo would provoke the state legislature to pass an explicit ban on “homosexuals” serving as foster or adoptive parents, as had happened in some other states when the issue aroused public attention.

The defense witnesses struggled to define the difference between a “policy” and a “practice,” and to argue that because the complaint filed in this case only explicitly attacked 1-95 as a “policy,” the court should not consider whether the “practice” actually followed was constitutional. Of course, since the “practice” was never formally published, it turns out that the plaintiffs did not learn of it until after filing their complaint and conducting discovery.  The court turned aside formalistic objections to extending the lawsuit to consider the “practice,” and agreed with Judge Colborn that the “practice” as variously described in depositions and internal division communications was itself discriminatory.

The defense witnesses could advance no good reason why approval of gay people to be foster or adoptive parents should require five layers of approval culminating in personal approval by the CEO, a degree of internal scrutiny that was not demanded of any other class of applicants.

The court also rejected the defendants’ argument that the case was not “ripe” for decision because nobody had been turned down under the “practice”, now that the Memo has been removed from the website. Interestingly, however, the opinion does not mention any evidence that any gay foster or adoptive parents have actually been approved.  The defendants argued that none of the plaintiffs have yet incurred the injury of formally being denied, so it was premature for the court to rule on the merits.  But the court noted plentiful U.S. Supreme Court precedents adopting the view that a denial of equal treatment was itself an injury, even if it was in the form of an official policy that had deterred individuals from applying and thus had not resulted in any formal denials.

Approving the district court’s decision to issue an injunction against the “policy” and the “practice,” Justice Wright quoted from U.S. Supreme Court opinions, that the Court had “repeatedly emphasized” that “discrimination itself, by perpetuating ‘archaic and stereotypic notions’ or by stigmatizing members of the disfavored group as ‘innately inferior’ and therefore as less worthy participants in the political community, can cause serious noneconomic injuries to those persons who are personally denied equal treatment solely because of their membership in a disfavored group.”

As to the “ripeness” issue in the context of a “reverse-discrimination” attack on a governmental affirmative action contracting policy, the Supreme Court has said “that the plaintiffs seeking to prevent future deprivation of the equal opportunity to compete need only demonstrate they will ‘sometime in the relatively near future’ bid on a contracted governed by such race-based financial incentives.”

The court also rejected the state’s contention that the case was “moot” because Memo 1-95 had been removed from the website. The court noted that the Memo had not been formally withdrawn, since it was not included on a website list of withdrawn memoranda, presumably so as not to call the legislature’s attention to its withdrawal.

“If a discriminatory policy is openly declared,” wrote Wright, “then it is unnecessary for a plaintiff to demonstrate it is followed in order to obtain injunctive or declaratory relief. We thus find immaterial any dispute in the record as to whether the Pristow Procedure was a policy versus a practice, whether it ‘replaced’ Memo 1-95, or the level of confusion within DHHS and its contractors concerning DHHS’ policy and practice when this action was filed.  A secret change in policy or procedure cannot moot an action based on a published policy statement that has been cited by the agency as excluding the plaintiffs from eligibility.”

Furthermore, the court said that a party cannot “moot” a case “simply by ending its unlawful conduct once sued,” because if such “voluntary cessation” rendered the case “moot”, causing its dismissal, “a defendant could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.”

In the final section of his opinion, Justice Wright’s discussion intimated what this appeal is really all about. The state is not actually contesting Judge Colborn’s conclusion that the policy or practice is unconstitutional.  Rather, hoping to get the case dismissed as moot, the state wants to be in a position to argue that it should not have to pay court costs and attorney’s fees to the plaintiffs!  They argued that the trial court abused its discretion in awarding costs and fees, and should have declared the case moot and dismissed it when the state removed 1-95 from its website.  The court wasn’t falling for this sophistry, however.

The April 7 opinion is a total rejection of all the arguments the state raised on appeal, and a total endorsement of Judge Colborn’s summary judgment order of August 5, 2015, which ordered the defendants to “refrain from adopting or applying policies, procedures, or review processes that treat gay and lesbian individuals and couples differently from similarly situated heterosexual individuals and couples when evaluating foster care or adoption applications under the ‘best interests of the child’ standard set forth in DHHS’ regulations.” The district court issued an order on December 15, 2015, awarding $28,849.25 in costs and $145,111.30 in attorney fees.

Lead attorneys for the plaintiffs are Amy Miller of the ACLU of Nebraska, Leslie Cooper of the national ACLU’s LGBT Rights Project, and cooperating attorneys Garrard R. Beeney and W. Rudolph Kleysteuber of Sullivan & Cromwell LLP. Amicus briefs in support of plaintiffs were filed by Nebraska Appleseed Center for Law in the Public Interest and the Child Welfare League of America.

Will the Supreme Court Actually Decide the DOMA Case?

Posted on: January 25th, 2013 by Art Leonard No Comments

When the Supreme Court granted the Solicitor General’s petition for certiorari on December 7, 2012, in United States v. Edith Windsor, posing the question whether Section 3 of the Defense of Marriage Act violates the equal protection rights of married same-sex couples by denying them federal recognition, the Court added two questions: Whether the government’s “agreement with the court below that DOMA is unconstitutional deprives [the Supreme Court] of jurisdiction to decide this case, and whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives (BLAG), which intervened at the trial court to argue in favor of the constitutionality of Section 3, has “Article III standing” to participate as a party in the case.

Presuming that neither Edie Windsor, the government nor BLAG would argue to the Court that it lacks jurisdiction over their case, the Court appointed Professor Vicki Jackson of Harvard Law School as a “friend of the Court” with directions to brief and argue that the Court lacks jurisdiction. Jackson filed her brief, written with attorneys from the law firm of Akin Gump Strauss Hauer & Feld LLP, on January 24, making the argument requested by the Court. Her brief has been posted by the clerk of the Court on the page devoted to the same-sex marriage cases on the Court’s website, which can be reached by clicking on the “Docket” box on the left-hand side of the Court’s homepage.

The jurisdictional questions are complicated, and probably lie outside of the consciousness of most people who are not federal litigators or legal academics, but they raise a serious possibility that the Court will not actually decide in this case whether DOMA Section 3 is unconstitutional. This is because the Supreme Court’s jurisdiction is circumscribed by the Constitution and by a body of procedural law developed by the Court over more than two centuries. In Article III, the Constitution says that the “judicial power” of the United States extends to “cases” and “controversies,” primarily involving federal law issues or disputes between parties from different states. The Court has interpreted this reference to “cases” and “controversies” to be a limitation on the jurisdiction of the federal courts, so that they cannot issue “advisory opinions” and can only rule on issues that are disputed between parties who have something personally at stake in the controversy.

In U.S. v. Windsor, Edie Windsor, as executor of her wife’s estate, had to pay out $363,053 in federal estate taxes that would not have been owed had the government recognized her Canadian same-sex marriage. She has a real stake in the outcome of this lawsuit, so her lawsuit presented a real “controversy” to the U.S. District Court for the Southern District of New York, in Manhattan.

BLAG has argued that it is not clear that New York would have recognized the marriage when Thea Spyer died in 2009, because the New York Court of Appeals had not ruled on the marriage recognition question and New York did not pass its Marriage Equality Law until two years later. If the marriage was not recognized by New York, there would be no basis to argue that it must be recognized by the federal government, and Windsor’s case would be dismissed for failure to assert a valid legal claim. The lower courts resolved that question against BLAG, however, pointing to numerous signs that by 2009 such a marriage would be recognized in New York, including rulings by intermediate appellate courts (the first, coincidentally, involving a Canadian same-sex marriage) and pronouncements by state officials, including the attorney general. BLAG has raised this issue again in a footnote to the brief it filed on January 22.

The more pressing problem for the Court’s jurisdiction is that while preparing to respond to Windsor’s lawsuit, the Justice Department reconsidered its position on the constitutionality of Section 3, deciding that it was unconstitutional. With President Obama’s approval, the Department adopted a policy of not defending Section 3 in court, even though the Executive Branch would continue to enforce it until it was either repealed or declared unconstitutional by the Supreme Court. Attorney General Eric Holder informed Congress of this development by a letter to House Speaker John Boehner, who convened the Bipartisan Legal Advisory Group of the House of Representatives to consider whether to take action. (The Senate, controlled by the Democrats, expressed no interest in participating in this.) Boehner’s Group took a party-line vote of 3-2 to authorize the Counsel to the House to hire an attorney to defend Section 3. They hired Paul Clement, who was Solicitor General during George W. Bush’s second term. Clement filed a motion on behalf of BLAG to intervene as a party, which was granted by the trial court. Clement opposed Windsor’s motion for summary judgment, the Justice Department argued in favor of Windsor’s motion, and the district court granted Windsor’s motion, thus giving the Justice Department the result it was seeking, a judicial declaration that Section 3 is unconstitutional.

The Justice Department filed an appeal to the 2nd Circuit Court of Appeals, purportedly to ensure that the appeals court would have jurisdiction over BLAG’s appeal, since there were doubts about BLAG’s standing to appeal on its own, discussed below. In briefs and at oral argument, the Justice Department argued that the 2nd Circuit should affirm the district court’s ruling, which it did. But even before the 2nd Circuit ruled, both Windsor and the Solicitor General had filed petitions asking the Supreme Court to review the case, although the district court had ruled in their favor. They argued that the question whether Section 3 was unconstitutional needed a definitive answer from the highest court, having already been declared unconstitutional in another case by the 1st Circuit Court of Appeals in Boston. After the 2nd Circuit affirmed the district court, the Solicitor General filed an additional statement with the Supreme Court, arguing that this case, rather than the case from the 1st Circuit decided earlier in 2012, would make the best vehicle for ruling on the constitutionality of Section 3. On December 7, the Court granted the Solicitor General’s petition (but not Windsor’s petition), adding the question about jurisdiction.

Prof. Jackson’s brief argues that the Solicitor General’s petition does not present the Court with a real “controversy,” as that term has been defined by the Court’s prior decisions, because the government does not disagree with the rulings by the 2nd Circuit and the district court finding Section 3 unconstitutional. The government’s position is not adverse to Windsor’s position; there is no real dispute between them about the unconstitutionality of Section 3. In effect, the government is asking the Court to affirm the lower court’s ruling.

There is a dispute about the outcome – and a real case or controversy for the Court to decide – if there is an adverse party. That raises the question of Paul Clement representing BLAG. If BLAG has “standing” as a party, it can provide the controversy by arguing that Section 3 is constitutional. But is BLAG a proper party to argue for reversal of the 2nd Circuit’s ruling?

The Supreme Court has ruled in the past that only an individual or entity with “standing” can bring a lawsuit or appeal a court’s decision. A party has standing if they have a personal stake in the outcome of the matter that is distinct from the general interest that any citizen has in the correct interpretation of the law. Windsor has a $363,053 stake in the matter, since she had to fork over the money. The government always has a stake in the question whether a statute is constitutional, so nobody is questioning the standing of the government, as represented in the Supreme Court by the Solicitor General. But BLAG does not represent the government. Professor Jackson points out that when it sought to intervene in the case, BLAG did not even officially represent the House of Representatives, much less Congress as a whole, as there was no congressional resolution authorizing its action. BLAG’s interest in the case is not particularized in the way Windsor’s interest is. None of the five members of BLAG – the Speaker of the House, the majority and minority leaders and the majority and minority whips – has any individual stake in the outcome. Members of Congress may have a generalized interest in whether a statute that they passed is constitutional, but not an individual, particularized interest.

Professor Jackson devotes much attention in her brief to distinguishing a case where lawyers for Congress were allowed to intervene as parties: Chadha. The case involved a provision of the immigration law that allowed a single house of Congress to vote to overrule a decision by the Justice Department concerning whether to deport a non-citizen from the United States. Such a vote had been taken in the case of Mr. Chadha, but a lower court found this provision of the law to be unconstitutional as a breach of separation of powers required by the Constitution. The Supreme Court, agreeing that the provision was unconstitutional, said in its opinion that Congress had standing to intervene, because the challenged statute involved a question of whether Congress could include in a statute a provision giving a single house of Congress power to override an executive branch decision. Congress as a body had a particularized interest in that question. Both houses of Congress passed resolutions authorizing the retention of a lawyer to intervene on their behalf.

This case is different. Neither house of Congress voted to authorize intervention in this case on behalf of Congress. The institutional prerogatives of Congress are not directly at stake in the question whether Section 3 of DOMA violates the equal protection requirements of the 5th Amendment. While members of Congress might make their views known to the Court through an amicus brief, neither Congress as a whole, a single house of Congress, nor a small committee of members such as BLAG, would have “standing” under the Court’s precedents.

If BLAG does not have standing as a party, then there is no party properly before the Court in this case seeking a reversal of the 2nd Circuit’s decision, so there is no true “case” or “controversy” as those terms are defined by the Court in its past decisions, which would mean that “the judicial power” of the United States no longer extends to this case before the Supreme Court, or so Professor Jackson strongly argues in her brief.

What if the Court agrees with Professor Jackson? At least it would have to dismiss the writ of certiorari for lack of jurisdiction. What would that mean for the 2nd Circuit’s ruling? Professor Jackson suggests that the 2nd Circuit might still have had jurisdiction to hear the appeal, based on a variety of arguments, but it is possible that its jurisdiction would also be found lacking, resulting in vacating its ruling. There is no doubt for Professor Jackson that the district court had jurisdiction, because Edie Windsor was suing for a tax refund and the Internal Revenue Service would not pay her unless ordered to do so by a court, so there was a real case or controversy at that level.

But if the Supreme Court agrees with Professor Jackson’s argument, the practical result is that for the remainder of the Obama Administration, assuming that the Justice Department does not revert to defending DOMA, the only way a constitutional challenge can get to the Supreme Court would be for a federal court of appeals to rule that Section 3 is constitutional, thus putting the plaintiff in the role of a petitioner seeking a reversal of the court of appeals, presenting a real controversy for the Supreme Court to resolve. In the meantime, the question of Section 3’s constitutionality would continue to be litigated in various courts, and Prof. Jackson suggests that if all the circuit courts of appeals come to agree that it is unconstitutional, a consensus could be reached without the participation of the Supreme Court and the executive branch could stop enforcing the statute. But that might take many years.

When the Court granted certiorari in this case and added the jurisdictional questions, I joked with a few people that perhaps the only way to get the Supreme Court to rule on DOMA would be to lose the case in the court of appeals. Prof. Jackson reaches the same conclusion, stating as much on page 38 of her brief. The parties in the case will file briefs responding to Prof. Jackson’s arguments late in February, and the Court will hear arguments in this case during the last week of March, with a decision expected by the end of June.