Lancaster County, Nebraska, District Judge John A. Colborn ruled on August 5, 2015, that the state’s policy for approving adoptions of state wards and foster care licenses for same-sex couples violated the rights of gay people and same-sex couples under the 14th Amendment of the U.S. Constitution. Ruling in Stewart v. Heineman, the court invoked the U.S. Supreme Court’s decision in Obergefell v. Hodges in support of its ruling, but without explicitly stating why Obergefell compels this result.
The lawsuit was initiated in 2013 by three same-sex couples who were told during the period 2010-2012 that they could not be certified to be foster parents because of a policy adopted by the state’s Department of Health and Human Services. In January 1995, DHHS issued Administrative Memorandum #1-95, which directs that foster home licenses may not be issued to “persons who identify themselves as homosexuals” or “unrelated, unmarried adults residing together.” DHHS indicated at the same time that the new policy would not affect existing foster placements or placements with a child’s relative, and apparently the intent was to institute a “don’t ask, don’t tell” policy under which staff would not ask about sexual orientation or marital status apart from inquiries already included in the licensing application and home study forms.
In the summer of 2012, the former Director of the Division of Children and Family Services (CFS), Thomas Pristow, told Service Area Administrators and the Deputy Director of the agency that they should no longer follow Memo #1-95, and that DHHS could place children with gay singles or same-sex couples, provided that he personally approve any such placement. This was after the three plaintiff couples in this case had been turned down under the policy expressed in Memo #1-95. The memo was subsequently removed from the agency’s website in February 2015 (after a federal district court had ruled that the state’s same-sex marriage ban was unconstitutional) but the policy was never formally rescinded in writing, Memo #1-95 does not appear on the DHHS website’s page for rescinded or replaced memos, and it has not been replaced with a new written policy statement. Indeed, the current website makes no reference to a DHHS policy on gay individuals or unrelated, unmarried couples. According to evidence introduced by the plaintiffs, some consisting of statements by agency officials at operational levels, it appears that there is considerable confusion within the agency and among agency contractors about the status of this policy, and that gay couples continue to be routinely denied certification as foster parents.
Judge Colborn rejected the agency’s contention that removal of the policy from the website and the agency’s verbal assurance to the judge that the policy was no longer in place was sufficient to make this case go away. Indeed, Judge Colborn found as a matter of fact that regardless of the memo’s absence or presence on the website, there is evidence that the agency, despite its disavowals, imposes a higher level of scrutiny on gay and same-sex couple applicants than on other applicants. Indeed, a non-gay individual or traditionally-married applicant goes through two low levels of scrutiny before final approval, while gay or same-sex couple applicants go through five tiers of scrutiny culminating in personal review by the head of the agency. Clearly there is an unequal process.
First the court addressed the odd posture of agency policy concerning Memo #1-95. “The current stated policy of DHHS is wholly inconsistent with Memo #1-95,” wrote the judge. “Memo #1-95 has not been rescinded or replaced with the current policy. A governmental agency cannot adopt a new policy, and not rescind or replace an Administration Memorandum that is wholly inconsistent with the current policy. It is the determination of the court that Memo #1-95 should be rescinded, and ordered stricken or replaced with the current policy, for the reason that it is not consistent with the current policy of DHHS. Additionally, pursuant to the holding of the United States Supreme Court in Obergefell v. Hodges, the court must hold that Memo #1-95 should be stricken as it violates the Equal Protection and Due Process Clauses.”
Turning to the challenge to the current unwritten policy described in agency testimony, the court found further constitutional flaws. “Defendants have not argued, nor have they identified, any legitimate governmental interest to justify treating gay and lesbian individuals and gay and lesbian couples differently than heterosexual individuals and heterosexual couples in this review process,” wrote Judge Colborn. In fact, he noted, the agency claimed it wasn’t treating them differently, but the testimony belied that assertion.
The agency made the laughable argument that the extra level of scrutiny on approving gay applicants was intended to “prevent bias against those persons.” What makes this laughable was that only those applications approved at lower levels are subjected to review at higher levels within the agency. “It is not logical that a procedure could prevent bias when it does not deal with placements that were rejected, or not recommended, during one of the previous four stages of review,” wrote the judge. “If the Defendants wanted to prevent bias against gay and lesbian couples, as well as unmarried adults residing together, Defendants would review denials of placements rather than approvals of placements.”
On its face, the extra tiers of review process appears designed to screen out gay applicants, not to prevent bias against them. The court found that the agency had acknowledged that there was “no child welfare interest advanced by treating gay and lesbian persons differently from heterosexual persons in decisions regarding licensing or placement in foster or adoption homes.” That being the case, once again the court deemed the policy inconsistent with the requirements of Obergefell v. Hodges.
The court ruled that the agency must treat gay and non-gay applicants the same, and same-sex and different-sex couples the same. Of course, in the post-Obergefell world, the state and its agencies must treat married same-sex couples the same as married different-sex couples as a matter of constitutional law.
The court ordered the agency to formally rescind Memo #1-95, and to replace it with a memo stating the constitutionally appropriate version of the current policy. The absence of a written policy clearly creates confusion within the agency and may provide too much unguided discretion to lower level agency functionaries to discriminate against gay applicants. The court enjoined the agency from “applying a categorical bar to gay and lesbian individuals, gay and lesbian couples, and unrelated, unmarried adults residing together seeking to be licensed as foster care parents or to adopt a state ward.” The court ordered that the same review processes be used for all applicants, and provided that “costs of this action are taxed to Defendants.”
Given the state’s reluctant acquiescence to Obergefell and the stated opposition by Governor David Heineman to gay rights in general and gay parenting in particular, it seemed likely that the state would pursue an appeal of Judge Colborn’s decision.
Tags: equal protection, gay adoption, gay foster parents, Nebraska adoption, Nebraska foster care, Obergefell v. Hodges, sexual orientation discrimination, Stewart v. Heineman