Same-Sex Couples Challenge Nebraska Foster Parent Rule

LINCOLN, Neb. | Three same-sex couples challenged a Nebraska policy on Tuesday that prevents them from serving as foster parents, setting up a legal battle in a state with a shortage of eligible families.

A lawsuit filed by the state and national American Civil Liberties Union argues that the rule discriminates against would-be foster parents based on their sexual orientation. The administrative policy, enacted in 1995, prohibits unrelated, unmarried couples and openly gay people from becoming foster parents.

The lawsuit argues that the rule excludes couples who are willing to become foster parents. Nebraska had more than 3,800 children who were in out-of-home care in April, according to the state Foster Care Review Office.

More than one-fourth of those children were placed in environments more restrictive than a traditional foster home, such as group homes, boarding schools, medical facilities, youth detention centers and emergency centers. The couples argue that a larger pool of foster and adoptive families will allow more children to avoid the trauma that bouncing from placement to placement can cause.

"Nebraska's policy on gay and lesbian foster parents does nothing to help children," said Amy Miller, legal director of the ACLU of Nebraska. "The individual review process already screens out the unsuitable parents. All this policy does is throw away people who would make good parents."

A Department of Health and Human Services spokesman on Monday referred questions to the Nebraska Attorney General's office. In a statement, attorney general spokeswoman Anita Scheuler said: "Our office is tasked with defending the state and we will do so vigorously."

One of the plaintiff couples, Joel Busch and Todd Vesely of Lincoln, said they applied to become foster parents in July 2008. The couple of nine years underwent training, completed a home study course and passed the required background checks. Vesely, 47, and Busch, 49, said they regularly baby-sit for their nieces and nephews. Vesely, a retired U.S. Marine, said he was free to serve as a stay-at-home parent, but their application was rejected because of the policy.

"It's just crazy to think that in any way, shape or form, you're limiting your pool of people," said Currey Cook, a senior staff attorney with the New York-based gay rights group, Lambda Legal. "Not only is there a shortage of placements, but also you have kids coming into foster care who have special needs. The plaintiffs in this case are folks who are clearly overqualified."

Conservative family values groups argued that becoming a foster parent in Nebraska is not a right, but a privilege granted by the state. The equal-protection arguments raised in the lawsuit shouldn't apply because same-sex couples are not recognized as a protected class, said Dave Bydalek, executive director of Family First. Nebraska's constitution forbids gay marriage, civil unions and other formal relationships between same-sex couples.