By Brendan O'Brien
(Reuters) - Gay and lesbian couples in Nebraska should be allowed to serve as foster or adoptive parents to children who are in state custody, according to a state court lawsuit filed on Tuesday.
A lesbian couple and two gay couples filed the lawsuit in a Lincoln district court arguing the state policy created in 1995 banning them from becoming foster or adoptive parents to children under care of Nebraska is unconstitutional.
The lawsuit comes two months after the U.S. Supreme Court threw out a key part of the Defense of Marriage Act, which barred same-sex couples from federal marriage benefits.
The ruling has led to a wave of legal challenges in federal and state courts to laws that restrict the rights of gays and lesbians.
Nebraska's policy prohibits the state's department of health and human services from issuing foster-home licenses to or placing children with people who identify themselves as homosexuals or to people who are unrelated, unmarried adults living together.
According to Leslie Cooper, an attorney for the American Civil Liberties Union, which is representing the couples in Nebraska, the state, through the screening process, has made multiple exceptions for unrelated, unmarried adults who live together, but not for gay and lesbian couples.
"There should be individual screenings subjected to the same standards for everybody that applies," she said.
The lawsuit contends the policy is unconstitutional because it treat gays and lesbians differently than heterosexuals, violates their personal liberties and subjects them to prejudice based on sexual orientation.
Given Nebraska's constitutional ban on same-sex marriage, the provision that excludes unrelated, unmarried adults from being adoptive and foster-care parents inherently applies to gay and lesbian couples, Cooper noted.
A lesbian couple in Michigan is challenging that state's constitutional ban on same-sex marriage and the state law that prevents them from jointly adopting each other's children.
State courts in Nebraska as well as Kentucky, North Carolina and Ohio have ruled that so-called second-parent adoptions are not available under current law. Second-parent adoption is the adoption of a child by a second parent in the home who is not married to the child's legal parent.
Nebraska is joined by Utah and Mississippi as states having the most restrictive adoption and foster-care policies, according to Cooper.
Utah, where gay marriage is not allowed, bans all unmarried individuals in cohabiting relationships from being adoptive or foster-care parents, while Mississippi only bans same-gender couples from those roles, she said.
(Reporting by Brendan O'Brien; Editing by Mary Wisniewski and Prudence Crowther)