Yesterday, the Nebraska Supreme Court struck down the state’s ban on “homosexuals” becoming foster parents, meaning that gay men and lesbians can now be treated equally in foster care placements in all 50 states—maybe.
Justice John Wright, who wrote the ruling, pulled no punches, saying, “Memo 1-95 was a published statement on DHHS’ official website that ‘heterosexuals only’ need apply to be foster parents. It is legally indistinguishable from a sign reading ‘Whites Only’ on the hiring-office door.”
This was the second time yesterday that a judge evoked earlier civil rights movements in an LGBTQ equality case—the other being the case of Gavin Grimm.
It is legally indistinguishable from a sign reading ‘Whites Only’ on the hiring-office door.
While the state argued that Memo 1-95 “ceased to be the policy of DHHS” by the time the lawsuit was filed, “the memorandum was never rescinded and it remained on the DHHS website,” the ruling tells us.
Justice Wright goes on to detail the impact of Memo 1-95:
The harm the plaintiffs wish to avoid is not just the possible, ultimate inability to foster state wards; it is the discriminatory stigma and unequal treatment that homosexual foster applicants and licensees must suffer if they wish to participate in the foster care system. The imminent injury that the court redressed was the plaintiffs’ inability to be treated on equal footing with heterosexual applicants.
The plaintiffs were faced with the unavoidable inability to be treated on equal footing if they wished to pursue being foster parents, and the district court’s order effected an immediate resolution of that imminent and serious harm.
Not only did the policy harm the plaintiffs, but it also limited the number of families available to care for the 3,800 children in the state’s foster care system, as the ACLU of Nebraska points out. And only those licensed as foster parents can then adopt children from state custody.
The lead plaintiffs, Greg and Stillman Stewart, were the subject of Preacher’s Sons, a documentary I first wrote about in 2007. It follows the family from their fostering and adoption of five “at risk” boys in Pasadena, California, through four interstate moves and five years of their lives. I interviewed filmmaker C Roebuck Reed in 2013, and I encourage you to read that piece in order to learn more about the family at the heart of this case.
This is a long-overdue ruling and a significant milestone.
And yet: Gay men and lesbians (and presumably, bisexual people in same-sex relationships) may now in theory have the legal right in any state to be treated the same as straight people when applying to become foster parents. But as I wrote recently, four states (Michigan, North Dakota, South Dakota, and Virginia) already have laws in place that allow child-placement agencies receiving public funds to discriminate if providing certain services (like allowing LGBTQ people to become foster parents) conflicts with their sincerely-held religious beliefs (and in some cases, with their “moral convictions”). Similar bills are pending in Alabama, Georgia, Oklahoma, and Texas. We’re a long way from truly equal throughout our nation.