Nebraska Supreme Court Affirms Victory for Three Same-Sex Couples Challenging Foster Parenting Ban

April 7, 2017

S&C, along with the American Civil Liberties Union, represents three Nebraska same-sex couples that successfully challenged (i) a Nebraska Department of Health and Human Services (DHHS) written policy that categorically prohibited them, on the basis of their sexual orientation, from serving as foster and adoptive parents to children in state custody; and (ii) the DHHS's informal (and, prior to the lawsuit, undisclosed) practice of allowing certain gay and lesbian applicants to receive foster or adoptive placements, but only after subjecting those applicants to greater scrutiny than would apply to similarly situated heterosexual applicants. The August 2013 complaint, filed in the District Court of Lancaster County, Nebraska, asserted claims for declaratory judgment and injunctive relief under the Equal Protection and Due Process Clauses of the U.S. and Nebraska Constitutions.
The Honorable John A. Colborn granted the plaintiffs' motion for summary judgment in its entirety on August 5, 2015, directing defendants to rescind the written policy, and enjoining DHHS from applying either its facially discriminatory written policy or its unequal informal practice of scrutinizing gay and lesbian applicants more heavily. The District Court also granted the plaintiffs' motion for attorneys' fees and costs. The defendants appealed to the Nebraska Court of Appeals, and after the parties and amici submitted briefs, the Nebraska Supreme Court granted the defendants' petition to bypass the Court of Appeals.
On appeal, the defendants argued that the plaintiffs had no redressable injury because long after the complaint had been filed—and only six months before the District Court granted summary judgment—DHHS had removed the offending written policy from its website. The defendants also argued the plaintiffs' claim was unripe, since none of the parties had ever been rejected under the secret, still-unequal informal practice that might have granted them a license.
After oral argument in January, the Nebraska Supreme Court affirmed the District Court's order in its entirety on April 7. In a unanimous opinion by the Honorable John F. Wright, the Court held that DHHS's written policy had been a “published statement . . . that 'heterosexuals only' need apply to be foster parents,” which was “legally indistinguishable from a sign reading 'Whites Only' on the hiring-office door”; the law of standing did not require the plaintiffs to “subject themselves to the humiliation of rejection and the stigmatic harm of unequal treatment.” Further, the Court held noted that the discriminatory written policy had been “deliberately maintained on the website in order to give the public the impression that it represented official DHHS policy,” and held that “[a] secret change in policy or procedure cannot moot an action based on a published policy statement.” Finally, the Court held that DHHS's “eleventh-hour” removal of the discriminatory administrative policy from its website could not moot the plaintiffs' claims under well-established law regarding mootness and the voluntary cessation of unlawful conduct. The Court also rejected the defendants' challenges to the District Court's award of attorneys' fees to the plaintiffs.
The S&C team on the appeal included Garrard Beeney, Rudy Kleysteuber, Tina Gonzalez Barton, Shane Yeargan and John Burzynski.