As we celebrate the recent Supreme Court ruling striking down state laws barring same sex couples from marrying, we should also remember the early heroes who helped win the right of gay couples in our state to be foster parents.

ACLU of Massachusetts cooperating attorney Anthony Doniger and staff attorney Marjorie Heins were lead counsel in Babets v. Dukakis (later Johnston), the landmark case in the 1980s challenging the state regulations that made it almost impossible for LGBTQ people to be foster parents.

In 1985, Donald Babets and David Jean, a gay couple, were providing a foster home for two young brothers. When the Boston Globe ran a story about them (against their wishes), the state immediately and suddenly yanked the boys out of the home and adopted the anti-gay regulations, despite the admission by state officials that the two men had been providing “exceptional care.” The new regulations (opposed by an overwhelming number of child-protection organizations) also required all existing or potential foster parents to disclose their “sexual preference,” leading some long-time foster parents to be disqualified when they refused to answer the question.

Doniger and Heins, along with GLAD co-counsel Kevin Cathcart, brought a lawsuit against the state on behalf of Babets, Jean, two other foster parents, and the Massachusetts Chapter of the National Association of Social Workers, challenging the regulations as violating the plaintiffs’ constitutional rights to equal protection and due process of law (rights later relied upon in Justice Kennedy’s majority opinion in the ACLU’s marriage case in the Supreme Court, Obergefell v. Hodges).

The ACLU's lawyers successfully fought against the state’s effort to have the case thrown out, with state Superior Court judge Thomas Morse ruling that the state regulations could be viewed as irrational because they might result in the rejection of excellent foster parents, instead of using a “best interests of the child” standard.

With the case going forward, our lawyers demanded to see government documents leading to the adoption of the discriminatory policy and regulations. Of course, officials didn’t want us to see those documents and fought all the way up to the Massachusetts Supreme Judicial Court, which ruled that there was no “executive privilege” in our state and that the documents had to be handed over.

At that point, after four years of litigating, the state caved in and settled the lawsuit by dropping the anti-gay regulations and returning to the “best interests of the child” standard.

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