Last month, the Nebraska Supreme Court struck down a long-standing state policy barring lesbians and gay men (“homosexuals,” as written in the policy) from serving as foster parents in Nebraska. With that decision, the court removed the last remaining state ban on adoption or fostering by lesbians and gay men. These laws were insulting to the community and denied children in the foster care system access to desperately needed loving families.
This is a landmark to celebrate. The ACLU spent nearly three decades fighting these horrible laws and policies. The earliest challenges did not fare very well, with courts upholding Florida’s notorious anti-gay adoption after accepting, without question, the assumption that lesbians and gay men are unsuitable — or at least inferior — parents. But over time, as our community became more visible and formed families in greater numbers, our adversaries could no longer depend on negative assumptions and stereotypes. We were able to challenge them in court with scientific evidence, and courts in Florida and Arkansas agreed that there was no legitimate basis to bar lesbian and gay couples from adopting or fostering children and, in fact, such policies harmed children by unnecessarily throwing away families that were willing and able to care for them; thus, the courts ruled that these laws were unconstitutional.
By the time the Nebraska case got to court, the State was not even trying to defend its discriminatory policy based on alleged failings of gay parents. Instead, it argued that while the ban on gay foster parents remained on the books and was presented to the public as state policy, the State was quietly ignoring it because it recognized that same-sex couples make equally good parents. This was a remarkable sign of the times and the progress that we’ve made. Our fitness to parent is no longer up for debate outside of the extreme fringes.
These lawsuits have put an end to the era of an individual’s sexual orientation disqualifying them from being an adoptive or foster parent. This is good for prospective parents and especially for the children who need them. In Florida, I had the pleasure of seeing our client Martin Gill and his two young sons get the security of becoming a forever family after Martin’s four year battle to adopt the boys. In Nebraska, three boys now have a family in Todd Vesely and Joel Busch, who had been turned away when they initially applied to become foster parents because they are a same-sex couple.
But while we have turned the page on blanket bans on adoption or fostering by gay people, we are now facing a new tactic by our opponents that would limit children’s access to adoptive and foster families headed by LGBT parents. Asserting the claim of religious freedom, lawmakers in several states are pressing legislation to authorize state-contracted child placement agencies to refuse to place children with families based on religious objections to those families, regardless of the needs of the child. In other words, though these agencies are being paid taxpayer dollars to perform the state function of finding families for wards of the state, these laws would allow them to use religious criteria in doing that work and deny children access to qualified families.
Under such laws, an agency could refuse to place a child with a close relative based on the agency’s religious objection to the relative’s sexual orientation or gender identity (or a religious objection to anything else such as her adherence to a different faith or the fact that she doesn’t regularly attend church). Or a medically needy child could be left without any family because the lesbian or transgender doctor who was willing and able to care for him was turned away on religious grounds.
This legislative session, bills to pass such laws were introduced in several states and have passed in South Dakota and Alabama, joining Virginia, North Dakota and Michigan. Such laws turn long-standing child welfare practice on its head, putting the needs of the placement agencies above the needs of the children the states are hiring them to care for. They also violate the Constitution’s guarantee of separation of church and state.
So during National Foster Care Month, as we rejoice in the official end to statewide anti-gay adoption and fostering bans that deprived children of countless good families, we continue advocating for those children who — depending on which state they live in and which agency is responsible for their care—continue to be at risk of being denied placement with the family best matched to meet their needs, or possibly any family at all.