On April 2, 2017, the Nebraska Supreme Court sided with three same-sex couples and struck down regulations restricting gay and lesbian couples from being considered and selected as foster or adoptive parents. Stewart v. Heineman, 296 Neb. 262, 2017 Neb. LEXIS 49, 2017 WL 1293658. At issue was a 1995 administrative memorandum (Memo 1-95) propounded by the state’s Division of Children and Family Services (previously known as the Department of Social Services) which provided in pertinent part: “…it is the policy of the Department of Social Services that children will not be placed in the homes of persons who identify themselves as homosexuals. This policy also applies to the area of foster home licensure in that, effective immediately, no foster home license shall be issued to persons who identify themselves as homosexuals.”
One plaintiff-couple, Greg Stewart and Stillman Stewart, sought a foster home license in 2012, but were told by a DHHS representative that they were barred under DHHS policy. A second plaintiff-couple, Todd Vesely and Joel Busch, began the process of becoming foster parents in 2008 but, in 2010, the then-director of the Division of Children and Family Services told them that DHHS policy barred licensing unrelated adults living together. None of the plaintiffs had actually been denied a license or placement, a fact relied upon by the defendants throughout the case to claim plaintiffs lacked standing.