ACLU sues Nebraska over refusal to license foster parents who are gay or living with an unmarried partner

In the advent of United States v. Windsor this summer, most public and media attention was focused on those lawsuits challenging bans on same-sex marriage across the country.  Lost in all the marriage emphasis was a challenge to an 18-year-old policy of the Nebraska Department of Health and Human Services banning the licensing of foster parents who are gay or living with an unmarried partner.  The ACLU filed the challenge last month.  The ACLU LGBT Project has been the main organization challenging outright adoption and foster parenting bans around the country, with great success in Florida and Arkansas in the last several years.  Because anyone who wishes to adopt a child in the custody of HHS must first be licensed as a foster parent, the policy effectively bans adoption of children in state care.  The 1995 administrative memorandum establishing the policy notes that children were not to be removed from existing placements, that case-by-case assessment was permitted when a child was being placed with a relative who was gay or living with an unmarried partner, and that applicants were not to be directly asked their sexual orientation.  The ACLU's Complaint notes that HHS would not have left children with gay foster parents, or made such placements under some conditions, if it had concluded that no gay person or couple could provide a suitable foster home.

The lead plaintiffs, Greg and Stillman Stewart, adopted five children from the California foster care system before moving to Nebraska in 2011.  When they applied to foster children there, they were turned down.  The Complaint cites a June 2013 state report documenting almost 4000 children in out-of-home placement, including over 900 in group homes, treatment and detention facilities, and emergency shelter care. It also notes that in April 2011, the US Department of Health and Human Services distributed to state agencies a memorandum advising agencies to recruit and train the "largely untapped resource " of gay men and lesbians willing to adopt children.  (More evidence of President Obama's commitment to LGBT issues).

The causes of action in the Complaint include discrimination on the basis of sexual orientation and violation of the consitutionally protected right to maintain intimate relationships, under both the Nebraska and US Constitutions.  The ACLU brought the case in a state trial court, which puts the case on track to be heard, in the end, by the Nebraska Supreme Court. By contrast, a case filed in the federal District Court would have gone on appeal to 8th Circuit Court of Appeals.  One of the most fascinating aspects of LGBT rights litigation for the past 25 years has been watching advocates choose between state and federal courts.  The only federal appeals court to examine an outright ban on LGBT adoption was the 11th Circuit, and they rejected every argument made by the ACLU on behalf of a stellar set of plaintiffs who were already raising children in Florida but were prohibited from adopting them.  The Florida ban was ultimately struck down in the state courts.  The Arkansas ban was also struck down in state courts.

I'm very enthusiastic about this litigation, but I have one gripe.  Since anyone living with an unmarried partner is banned from fostering, I wish one such person was among the plaintiffs.  I would even like to see a single gay man or lesbian included.  But I am especially pleased that the Complaint does not argue that the ban is unconstitutional specifically because same-sex couples cannot marry.  That argument, which the ACLU is making in its challenge to North Carolina's ban on second-parent adoption, implies that it would be constitutional to ban unmarried couples from adopting as long as same-sex couples were permitted to marry.  This diversion from the decades long emphasis on individual assessment of foster and adoptive parents without regard to their sexual orientation or marital status, an emphasis that focuses on the needs of the children for loving homes, strikes me as an unfortunate consequence of the incessant emphasis on marriage in LGBT rights advocacy.

At this point Nebraska will just look foolish trying to defend its ban.  That doesn't mean it won't try.

Judge rules Catholic Charities has no property right to renewal of contract for adoption and foster care services

An Illinois state trial judge has thrown out the law suit filed by Catholic Charities of Illinois. The state of Illinois refused to renew the agency's contract to provide adoption and foster placement services because Catholic Charities said it would not place children with unmarried couples, including same-sex couples in civil unions. The agency sued.

Normally we think such lawsuits are about some religious freedom claim to discriminate. But in the first instance this suit was about whether Catholic Charities had a right to have its contract renewed. The agency claimed that because it had been renewed for 40 years, the state could not refuse to renew it this time without providing Due Process of law, which would include the right to present their point of view to a neutral decisionmaker.

The trial judge disagreed. He had previously granted an injunction against the contract termination in order to preserve the status quo. The injunction was granted on July 12. He heard argument on Wednesday and ruled yesterday. His short opinion concluded that "no citizen has a recognized legal right to a contract with the government."

Government attorneys argued on behalf of the state, but the ACLU of Illinois represented intervenors -- a lesbian couple wishing to become foster parents and a representative of all foster children in the state. The ACLU memoranda argued that since the state could not discriminate then a state contractor could not discriminate either.

The Thomas More Society, the "pro-life law center" representing Catholic Charities, has not decided what their next step will be.

Illinois rejects adoption restrictions

It's become commonplace for religiously affiliated adoption agencies to object to same-sex marriage or civil union bills on the ground that they will be forced to place children in homes with same-sex couples. Of course, if you ask them whether they will support same-sex marriage or civil union if they receive an exemption for adoption placements, they will still say "no." So, really, it becomes a disingenuous way to fight recognition of same-sex couples.

With Illinois about to allow civil unions, such agencies attempted to obtain legislation permitting them to decline to place children with a person in a civil union. Earlier this week, the bill failed in committee by one vote. The Illinois ACLU took the lead in opposing the bill. Its position paper against the bill is very forceful. Read it here. It points out that there is no child welfare basis for such a law and that it amounts to unconstitutional discrimination. One of its other arguments, which I love, is that such a law would send a "cruel and harmful message to gay and lesbian foster children: When you grow up, the agency that provides your care, would never let you take care of other kids."

Almost 15 years ago I wrote an article about the benefit to gay and lesbian children in foster care of openly licensing gay and lesbian foster parents. I don't usually hear that argument made in the political context. Kudos to the Illinois ACLU for making it here.