The American Civil Liberties Union (ACLU) has filed suit against Santa Ana-based Olive Crest Family Care and Adoption Agency, on behalf of San Diego residents Shannon Rose and Jane Wesley Brooks. The suit claims that although Rose and Brooks were assured that their sexual orientation would not be taken into consideration in the adoption process, they were ultimately dropped from the organization’s adoption certification program because they are lesbians and the policy gives preferential treatment to married heterosexual couples.

Rose and Brooks worked with an Olive Crest social worker for several months, steadily making their way through the adoption certification process. Things moved along smoothly until the social worker called saying that she had been instructed to read Olive Crest’s new recruitment policy to them over the phone. The new policy stated that Olive Crest preferred to place children with “nuclear families.” Other applicants would be considered on a case-by-case basis and those who didn’t fit with Olive Crest’s values, treatment philosophy, etc., would be referred to other agencies. In the meantime, the applications of all families currently in the middle of the qualification process were suspended while the new policy was implemented.

When pressed for an explanation, the social worker told the couple that the policy was basically an excuse to discriminate. She resigned from her job at Olive Crest in protest soon afterward.

Rose and Brooks decided to wait for their application to be reactivated, but heard from the agency only once over the next several months, when an employee called to ask if they had scheduled parenting classes. When they explained that they had been told their application was suspended while the new policy was implemented, the caller said they would check into it and get back to them. Olive Crest did not contact them again until after their story was published in the Orange County Register.

“As far as I know, there are very few cases raising this exact issue in the context of California law,” explained Martha Matthews, an ACLU lawyer representing Rose and Brooks. “The case includes a constitutional claim … saying that since Olive Crest, although it’s a private non-profit, is basically acting like a government agency in finding homes for kids in the foster care system, it’s subject to the same constitutional rules as a government agency.… That means you can make an argument based on equal protection. Just as the state or county could not categorically exclude gays and lesbians from providing foster care or adoptions, a private agency performing a government function can’t either.”

According to Matthews, although there are no prior cases with the same details, there are prior decisions ruling that a foster care agency is a government actor, as well as rulings in similar contexts saying that the government can’t discriminate against gays and lesbians.

Olive Crest has filed a motion to dismiss the lawsuit, in essence claiming that even if the accusations presented in the lawsuit were true, it is not unlawful to prefer nuclear families. In a motion filed in U.S. District Court, Olive Crest’s lawyers argued that, “A policy which simply favors the placement of children with men and women who are in legally recognized and sanctified marriages is both fair and reasonable. The stability and security of traditional marriage for the benefit of children is reasonably preferred over unsanctioned and legally unrecognized cohabitants, acquaintances or other companions.”

However, the state of California’s Community Care Licensing Agency has informed Olive Crest that the policy is not consistent with state regulations.

“Under the Unruh Act, any business establishment open to the public can’t discriminate on the basis of race and sex and other things,” Matthews explained. “There’s never been a case exactly like this before, but there are plenty of precedents applying the Unruh Act to nonprofits that are kind of like Olive Crest. I think we have the law on our side.”