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Nebraska Supreme Court allows same-sex couple to adopt

“When you win cases like this, you make it more clear LGBTQ rights are not a passing fad,” the attorney representing the couple said.

The Nebraska Supreme Court has ruled that a lesbian couple can legally adopt a 3-year-old child who has lived with them since birth, overturning a lower court’s decision rejecting their petition.

In July 2020, Dixon County Judge Douglas Luebe said that he had no jurisdiction to grant an adoption to the couple — identified by the American Civil Liberties Union of Nebraska as K.H. and M.V., who asked to keep their names anonymous — because they were listed in their petition as “wife and wife,” according to the Nebraska Supreme Court. In his order, Luebe referred to a version of Black’s Law Dictionary that defined “wife” as “a woman who has a lawful living husband.”

On Friday, the Nebraska high court rejected Luebe’s reasoning, maintaining that state adoption laws allow any married couple to adopt, provided both partners were listed on the adoption application.

Justice William B. Cassel wrote in a unanimous decision that Nebraska adoption law permits any minor child to be adopted by any adult person or persons. “The only caveat contained in the statute is that if the person had ‘a husband or wife,’ the husband or wife had to join in the petition.”

K.H. and M.V, who married in California in 2008, sought to adopt a child born to M.V.’s sister in 2017, according to court documents. The child’s biological mother had already relinquished her rights and the father never sought custody.

They filed for adoption in Dixon County Court in May 2020, but Luebe dismissed their request after calling a special hearing on legal issues raised by their petition, The Star Herald reported, during which he described himself as “old-fashioned.”

He determined the “plain, ordinary language” of Nebraska adoption law would not permit a “wife and wife” to adopt and warned that any other conclusion would transform the court into an “imagination station.”

Luebe did not respond to a request for comment but a spokesperson for the Nebraska Supreme Court told NBC News that Nebraska judges are prohibited from commenting on specific cases.

In opening arguments, the couple’s attorney, Matthew Munderloh, said K.H. and M.V had filled out all the required relinquishments and consent forms and completed a required home study and background checks.

Even if the “plain language” of the law didn’t permit them to adopt the child, Munderloh added, “the Constitution and Obergefell v. Hodges and its progeny require an interpretation that would allow the adoption to proceed.”

Sara Rips, LGBTQIA+ legal and policy counsel for the ACLU of Nebraska, joined in representing K.H. and M.V in their appeal. She was pleased the opinion came from Cassel, a textualist known to value the letter of the law.

She was also surprised at how quickly the ruling came in.

“They heard oral arguments on March 4 and issued an opinion on March 26 — which is unheard of,” Rips said. “Normally you expect two to three months.”

She added that the decision would help strengthen the understanding, both in Nebraska and nationwide, that not only is marriage equality the law of the land “but that all the rights that come with marriage apply equally.”

“They build on top of each other — when you win cases like this, you make it more clear LGBTQ rights are not a passing fad,” Rips said. “The more time that passes, the more cases that build up an institution, the more support you have that institution is not going away. You build that foundation brick by brick, case by case.”

Dixon County is a fairly rural section of northeast Nebraska, with less than 5,700 residents, according to the U.S. Census Bureau, and Rips said her clients didn’t set out to become LGBTQ activists.

“They just want to adopt this child,” she said. “They want to be helpful, but they just want to be parents to a kid. That’s the most Nebaska thing — they don’t want this to be a big deal.”

In 2017, the Nebraska Supreme Court upheld a lower court’s ruling striking down a state policy prohibiting “persons who identify themselves as homosexuals”from becoming foster parents or adopting wards of the state. In his opinion, Justice John Wright slammed the policy as “legally indistinguishable from a sign reading ‘Whites Only’ on the hiring-office door.”

Rips said Friday’s ruling is further proof Nebraska is moving toward being more inclusive and accepting of the LGBTQ community.

“I know I have plenty of years of work ahead of me,” she said, “but we’ll get there.”

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