LITTLE ROCK (ABP) — The Arkansas Supreme Court ruled unanimously June 29 that the state's child-welfare agency cannot ban gays from being foster parents.
The ban had been the only one of its kind in the nation.
The justices agreed with a lower court's 2004 ruling that the policy, enacted by the Arkansas Child Welfare Agency Review Board, violates the Arkansas Constitution because the agency only has authority to protect the welfare of children, not to regulate “public morality.”
The ban, enacted in 1999, said foster children could not be placed in any home where a gay adult was present. A group of gay would-be foster parents, along with a heterosexual foster parent who has a gay son who sometimes lives with him, sued the agency with the help of civil-liberties groups.
The courts rejected as baseless the state's argument that being raised in a home with gay parents harms children.
Justice Donald Corbin, writing the court's opinion, said the regulation “does not promote the health, safety or welfare of foster children but rather acts to exclude a set of individuals from becoming foster parents based upon morality and bias.”
Corbin said the state presented no convincing evidence that having a gay parent or parents is more harmful to children than having heterosexual parents. He also noted that members of the child-welfare board were aware of gays who had served as Arkansas foster parents prior to the ban, with no reported negative effects.
While the state argued that children should be raised in homes with married heterosexual parents, Arkansas allows single heterosexuals to serve as foster parents. The state also does not ban gays from permanently adopting children.
Corbin also noted that two members of the child-welfare board cited their religious disapproval of homosexuality in testimony about why they support enforcing the ban. “[T]he board's enactment of [the regulation] was an attempt to legislate for the General Assembly with respect to public morality,” he wrote.
Since the court decided the case, as the lower courts did, on a separation-of-powers issue, it did not reach the would-be foster parents' other arguments against the policy: That it violated the Arkansas and federal constitutions' equal-protection and privacy provisions. Justice Robert Brown, however, wrote a separate concurring opinion noting he would have found in favor of gay foster parents on those counts as well.
“There is no question but that gay and lesbian couples have had their equal-protection and privacy rights truncated without any legitimate and rational basis in the form of foster-child protection for doing so,” Brown wrote.
But since the majority did not address those arguments, legislators could re-write state law to give the board power to issue such a regulation.
Gunner DeLay, a Republican candidate for Arkansas attorney general, issued a statement shortly after the ruling saying he would push for such a law.
“It seems that the court's action was based on a concern for gay and lesbian couples and not what is in the best interest in the child,” the statement read. “In spite,[sic] of what testimony may have been presented at trial the fact is that a child has the best chance for proper development with the presence of a mother and father in the home. There is no substitute for what God and nature intended.”
Officials for the American Civil Liberties Union of Arkansas, which sued on behalf of the original plaintiffs, praised the ruling.
The court “clearly understood what social scientists and every respected child welfare organization have been saying for years: There is no reason to deprive children of good homes by excluding lesbian and gay people from serving as foster parents,” said Rita Sklar, the group's executive director, according to a press release. “We have a shortage of foster homes in Arkansas, especially for teenagers and sibling groups. Thanks to today's ruling, Arkansas' foster children have a better chance of finding loving homes.”
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