BY BOB ROEHR
The Arkansas Supreme Court unanimously upheld a lower court ruling that the state Department of Human Services ( DHS ) and Child Welfare Agency Review Board erred in creating a policy that bans homosexuals from serving as foster parents.
The June 30 decision, written by Associate Justice Donald L. Corbin, agreed that 'the regulation did not promote the health, safety, and welfare of foster children and, thus, the Board exceeded its authority in legislating for public morality.'
The record of testimony by Board members 'demonstrates that the driving force behind adoption of the regulation was not to promote the health, safety, and welfare of foster children, but rather [ was ] based upon the Board's views of morality and its bias against homosexuals.'
The Board had argued that it was protecting children because 'we do not know the effect of temporary homosexual parenting.'
But the court rejected that view. It wrote, 'This argument flies in the face of the evidence presented by the appellees' experts and the circuit court's findings of fact. Moreover, DHS admits that, prior to the adoption of the regulation, homosexuals were allowed to be foster parents and no known complaints were ever made in those situations.'
The court chose to rule on the more limited grounds of the authority of the state agency and chose not to address constitutional arguments of equal protection and privacy that the gay plaintiffs raised in challenging the policy.
In a concurring opinion, Justice Robert L. Brown would have gone farther, finding the policy unconstitutional on those grounds as well.
He wrote, 'There is no rational basis in the form of studies or empirical data that sustains the regulation. And the United States Supreme Court as well as this court have made it clear that mere moral disapproval of sexual activity by a group does not qualify as a legitimate reason for an attack on equal protection or privacy rights.'
The American Civil Liberties Union ( ACLU ) of Arkansas helped to bring the case forward. Executive director Rita Sklar said the decision shows that the court 'clearly understands 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.'
Republican Governor Mike Huckabee was 'very disappointed that the court seems more interested in what's good for gay couples than what's good for children needing foster care,' said spokesman Alice Stewart.
He expects the legislature will address the issue when it meets in 2007. The court did not preclude the legislature from enacting a similar ban, but given the record of evidence in the case, most observers believe it impossible to establish a rational basis for enacting a law that would withstand judicial review.
The Democratic and Republican nominees for governor this fall were hesitant to comment on possible legislation. Huckabee cannot run for reelection though he is considering running for the Republican nomination for President.
