Arkansas Supreme Court Overturns State's Ban on Gay Foster Parents
- Arkansas Supreme Court overturns state's ban on gay foster parents
By Robert Marus
Associated Baptist Press
Published June 29, 2006
LITTLE ROCK (ABP) -- The Arkansas Supreme Court ruled unanimously June
29 that the state's child-welfare agency cannot ban gays from being
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
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
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."