High Court to Decide If a Boy Can Have 2 Moms
Omaha World-Herald,
August 3, 2001
World Herald Square, Omaha, NE 68102
Fax: 402-345-4547
Email: pulse@owh.com
http://www.omaha.com/index.php?u_div=3&u_hdg=0&u_sid=183304
By Leslie Reed, World-Herald Bureau
Lincoln—Does Nebraska law allow a 3-year-old boy
named Luke to have two mommies?
In an adoption case testing the bounds of the same-sex marriage ban
approved by voters last year, the Nebraska Supreme Court has been asked to
decide whether a lesbian woman can adopt her partner’s biological son.
The case, scheduled for hearing in October, is the first time the high
court has been asked to rule on whether Nebraska law allows adoptions by gay
and lesbian couples.
In legal papers submitted to the Supreme Court, Deputy Attorney General
Steve Grasz called the case "an attempted end-run" around the state’s
constitutional prohibition on the recognition of same-sex marriages and other
similar relationships.
The Attorney General’s Office is part of the case because it involves the
interpretation of state law.
"This case has far-reaching societal implications," Grasz wrote.
"Nebraska has a constitutional ban on recognition of same-sex domestic
partnerships, and the Legislature has not enacted same-sex adoption
legislation. A ruling in favor of the appellants would represent a radical
shift in adoption law in Nebraska without legislative action."
Grasz declined to be interviewed Thursday.
The Lincoln couple’s attorney, Amy Miller of the Nebraska chapter of the
American Civil Liberties Union, said in legal documents that the
constitutional amendment is irrelevant to the case.
The couple are seeking recognition of a parent-child relationship, not a
spousal relationship, Miller said.
"Since the laws of Nebraska do not allow (the women) to enter into a
legally recognized marriage, they believed it was in Luke’s best interests
to obtain a legal recognition of his relationship to both women through
adoption," she wrote.
Miller also declined to be interviewed.
Court records have been sealed because the couple wish to protect the
privacy of the child.
The facts are laid out in legal briefs submitted by both sides. Those
documents, which identify the couple only by their initials and the child only
by his first name, are part of the public record.
According to Miller’s legal brief, the women met eight years ago and were
joined in a commitment ceremony in 1995.
Luke, born in 1997, was conceived through artificial insemination at the
University of Nebraska Medical Center in Omaha. The anonymous sperm donor has
no parental rights.
The biological mother, 31, works full time to support her household.
Her partner, 34, stays at home as a full-time parent for Luke. She sought
to adopt the boy so she could have custody if her partner dies. He would be
her heir if she dies without a will.
She also wants to provide for his medical care in emergencies and to
continue a stable family relationship.
A social worker gave a glowing report about the couple’s parenting of the
boy, but Lancaster County Judge James Foster denied the adoption in November.
Although one of the women is the child’s biological mother, Foster said
state law does not allow "two nonmarried persons" to adopt a minor
child. He said the biological mother would have to relinquish her parental
rights before her partner could adopt Luke.
Miller said the law does not specifically prohibit adoption by two
unmarried people. She said the law grants the right of adoption to "any
person or persons."
She argued that in passing the law, the Legislature did not express
preference for married couples or exclude any particular type of family
relationship.
Miller said the trial court’s reasoning was that "a single person
with no intention of marrying or even entering into a stable relationship to
avoid orphaning his or her child may adopt, but a monogamous couple in a
long-term relationship offering a stable environment is barred from
adopting."
Grasz said the law permits the partner of a biological parent to adopt only
in cases involving stepchildren.
"Significantly ... this exemption is limited to ‘an adult husband or
wife,’" he wrote.
He said he doubted that the Legislature intended to allow adoptions by
same-sex couples when Nebraska’s adoption law was enacted in 1943.
At the time, he said, both sodomy and unmarried cohabitation in "a
state of fornication" were criminal violations.
"It is clear the Nebraska Legislature did not have any intention of
furthering the social agenda of the homosexual rights movement," he
wrote.
"In fact, an intent to preserve the traditional family is evident
throughout the course of the statutory evolution of Nebraska adoption
law."
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