Nebraska Supreme Court Strikes Down Anti-Gay Foster Parent Rule.
In 1995, Nebraska issued the notorious Memo 1-95, which prohibited same-sex couples from fostering children. The policy barred same-sex couples from adopting children as well; under state law, individuals may adopt kids from state care only if they have first been licensed as foster parents—which Memo 1-95 made impossible for “persons who identify themselves as homosexuals.” In 2013, three same-sex couples, represented by the ACLU and Sullivan & Cromwell, filed a lawsuit alleging that the ban violated of their constitutional rights. They won in 2015 when a district court found that Memo 1-95 violated the 14th Amendment’s guarantees of equal protection and due process. Nebraska appealed to the state Supreme Court. It didn’t attempt to defend its ban on constitutional grounds. Instead, it argued that the three couples did not have standing to sue because they hadn’t yet been denied foster care licenses.
On Friday, the Nebraska Supreme Court unanimously rejected the state’s appeal, affirming the lower court decision invalidating Memo 1-95. In his remarkable opinion for the court, Justice John Wright spoke eloquently about the dignitary harms same-sex couples suffer knowing that the state formally bars them from fostering children. It is immaterial, Wright explained, that the state enforces Memo 1-95 only sporadically; same-sex couples suffer a constitutional harm from the mere knowledge that it constitutes official state policy.
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