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LINCOLN, Neb. (AP) — Three same sex couples can go ahead with their lawsuit challenging a Nebraska policy preventing them and all unmarried couples from serving as foster parents, a judge ruled.

The state had sought dismissal of the case, saying the same sex couples had failed to make their case, the Lincoln Journal Star said (

But Lancaster County Judge John Colborn said in a ruling last week that no evidence was presented suggesting whether the policy of excluding unmarried couples could survive judicial scrutiny, so he allowed the case to go forward.

The Nebraska and national American Civil Liberties Union filed the lawsuit in August for Greg and Stillman Stewart, Lisa Blakey and Janet Rodriguez and Todd Vesely and Joel Busch. They alleged that the policy violates their rights to equal protection because it discriminates against would-be foster parents on the basis of their sexual orientation.

The suit targets a 1995 administrative memorandum issued by Mary Dean Harvey, then director of the Nebraska Department of Social Services, which later was merged with other agencies to form the Nebraska Department of Health and Human Services. The memo said no foster home license should be issued to "people who identify themselves as homosexuals" or "unrelated, unmarried adults residing together."

"Nebraska's policy on gay and lesbian foster parents does nothing to help children," said Amy Miller, legal director of the ACLU of Nebraska, when the lawsuit was filed. "The individual review process already screens out the unsuitable parents. All this policy does is throw away people who would make good parents."

Conservative family values groups have argued that becoming a foster parent in Nebraska is not a right, but a privilege granted by the state. The equal-protection arguments raised in the lawsuit shouldn't apply because same-sex couples are not recognized as a protected class, said Dave Bydalek, executive director of Family First. Nebraska's constitution forbids gay marriage, civil unions and other formal relationships between same-sex couples.

In its argument for dismissal, the state said it served a legitimate government interest to place foster children in a setting closest to a traditional family setting.

But Judge Colborn said the state hasn't put the same restrictions on private adoption agencies.

A trial date has not been set.