Case: Stewart v. Heineman

On August 27, 2013, the plaintiffs, who were gay and lesbian couples in Nebraska, filed suit in the District Court of Lancaster County, Nebraska against the Nebraska Department of Health and Human Services (DHHS) and the Nebraska Division of Children and Family Services. Represented by attorneys from the American Civil Liberties Union, the plaintiffs sued under 42 U.S.C. §1983 and the Nebraska Constitution, seeking declaratory and injunctive relief prohibiting the Department of Human Services from continuing its policy of denying foster parent licenses to gay and lesbian individuals and couples.

Specifically, the plaintiffs alleged that DHHS categorically denied gay and lesbian people the ability to foster or adopt children from State custody regardless of their ability to care for the child. The policy at issue, described in DHHS's Memo #1-95, also prevented unmarried, unrelated adults who live together from adopting or fostering children. The plaintiffs argued that the policy should be subject to a heightened level of scrutiny because it discriminated based on a suspect class and infringed on a fundamental liberty. Further, the plaintiffs argued that the policy failed any level of scrutiny because it discriminated based on sexual orientation without any rational relation to a state interest. The plaintiffs alleged that Memo #1-95 violated the Fourteenth Amendment's Equal Protection and Due Process Clauses, as well as analogous clauses of the Nebraska Constitution.

On April 24, 2014, Judge John A. Colborn denied the Nebraska departments’ motion to dismiss. The court held that the disparate impact between state adoption agencies that prohibited gay and lesbian couples from adopting or fostering children, and state-licensed private adoption agencies that did not, was sufficient evidence on which to base an equal protection claim. Further, the court held that the plaintiffs had stated a Due Process claim based on the infringement of the fundamental right to intimate relationships. 2014 WL 4952065.

The defendants moved for summary judgment on February 13, 2015, and the plaintiffs moved for summary judgment the following month, on March 6. On August 5, 2015, Judge John A. Colborn granted summary judgment for the plaintiffs. 2015 WL 10373584. The court found that there was confusion within DHHS because they had a new policy that allowed gay and lesbian people to adopt and foster children, but Memo #1-95 had never been officially rescinded or replaced. The court held that memo should be stricken and replaced with the current policy, and that the memo violated equal protection and due process based on the U.S. Supreme Court's decision in Obergefell v. Hodges, 

The court also held that DHHS's current policy, which allowed gay and lesbian people to adopt or foster children but imposed an extra stage of review on them that heterosexual people did not have to go through, also violated equal protection and due process under Obergefell. The court rejected DHHS's claim that the extra stage of review was to prevent discrimination, noting that the review process only applied to approvals, not to rejections, so it couldn't prevent discriminatory rejections. The court also noted that the defendants had agreed an extra stage of review was not justified by any child welfare interest.

Judge Colborn ordered that Memo #1-95 be rescinded and replaced with the current policy and enjoined DHHS from enforcing Memo #1-95. Judge Colborn additionally ordered that the Department follow the same review processes for foster or adoptive child placements with: 1) unrelated, unmarried adults residing together, 2) gay and lesbian individuals, 3) gay and lesbian couples, 4) heterosexual individuals, and 5) heterosexual married couples.

After the defendants moved to amend this judgment, the court issued an amended order that clarified its decision. It also narrowed the injunction to avoid supplanting the "best interests of the child" standard. The new order rescinded Memo #1-95, enjoined the defendants from enforcing the memo or barring gay and lesbian people from fostering or adopting children, and enjoined the defendants from treating gay and lesbian people different from similarly situated heterosexual people when applying the "best interests of the child" standard. 2015 WL 10373602. 

On October 16, 2015, the plaintiffs moved for attorneys' fees. The court granted the motion two months later and awarded $173,960.

The defendants appealed the grant of summary judgment and attorneys' fees to the Nebraska Supreme Court. On April 7, 2017, the Supreme Court affirmed the lower court’s decision. The Supreme Court held that the plaintiffs' claims were ripe because DHHS's unequal treatment of them was an imminent harm. The Supreme Court also held that the claims were not moot because DHHS had publicly displayed Memo #1-95 as its policy, and taking it down from its website was not enough to moot the case without some indication that DHHS wouldn't reinstate the policy. Further, the plaintiffs had challenged DHHS's current policy, not just Memo #1-95. Finally, the Supreme Court affirmed the award of attorneys' fees. 892 N.W.2d 542.

As of April 2024, there do not appear to be any further developments.