WASHINGTON (ABP) — A judge has overturned an Arkansas state policy banning the placement of foster children in any household with a gay adult, saying the state agency that created it had unconstitutionally overstepped its bounds.
Pulaski County Circuit Judge Timothy Fox ruled Dec. 29 that the Arkansas Child Welfare Agency Review Board could not enforce the policy because it has no authority under the Arkansas Constitution to regulate “public morality.”
The foster-care ban was the only one of its kind in the nation. But Arkansas law does not ban gays and lesbians from adopting children permanently.
Arkansas legislators gave the welfare agency the responsibility to “promote the health, safety and welfare of children,” Fox said. However, he added, the ban on gay foster parents and household members did nothing to further that goal, and that the ban was a bureaucratic attempt to influence public policy on issues that go beyond child welfare.
“The testimony and evidence overwhelmingly showed that there was no rational relationship between the … blanket exclusion [of households with gay members] and the health, safety and welfare of the foster children,” Fox wrote in the opinion accompanying his order.
The ruling came in a lawsuit filed by the American Civil Liberties Union on behalf of a gay Little Rock couple, a lesbian from Fayetteville, and a married heterosexual man from Waldron who has a gay adult son who sometimes lives at home. All were banned from serving as foster parents under the policy.
“Throughout this case, the state has relied on ugly stereotypes to deny children in the Arkansas foster-care system the chance of having the widest possible pool of foster families available to them,” said Rita Sklar, the ACLU of Arkansas' director. “We're very pleased that the court saw through these arguments and has recognized that gay and lesbian people can provide homes just as loving and stable as anyone else's.”
However, while Fox found that the state had not proved living in a household with a gay adult present had any detrimental effect on children, his decision also did not turn on the main argument that the ACLU put forth. Their attorneys had argued the ban denied gay and lesbian Arkansans equal protection of the law. Fox said state law does not treat homosexuals separately from heterosexuals as a protected class of citizens, like women or ethnic minorities.
Kathy Hall, the state's main attorney in the case, had argued that the kinds of children commonly put in foster-family situations need stability and normalcy in their lives. “What we were talking about was the welfare category, and that's the stress level, and that's a huge category for these children,” Hall said, according to the Associated Press.
State officials have vowed to appeal the ruling, but Fox's opinion noted that the legislature could act to give the agency the authority to resurrect the ban — or pass a law doing the same.
The policy on foster parents was established by administrators appointed by Gov. Mike Huckabee (R), who is a former pastor and a past president of the Arkansas Baptist State Convention.
While no other state bans gay foster parents, three states — Florida, Utah and Mississippi — have some sort of restriction on gay individuals or couples who want to adopt children. A federal appeals court recently upheld the Florida law in the face of a challenge to it, but that decision has been appealed to the Supreme Court.