Ark. Ban on Gay Foster Parents Struck Down

An Arkansas judge Wednesday declared unconstitutional a state ban on placing foster children (search) in any household with a gay member.

Ruling in a case brought by the Arkansas chapter of the American Civil Liberties Union (search), Pulaski County Circuit Judge Timothy Fox (search) said the state Child Welfare Agency Review board had overstepped its authority by trying to regulate "public morality."

At issue was a 1999 board regulation that said gays cannot become foster parents, and foster children cannot be placed in any home with a gay member under its roof.

The ACLU had argued that the regulation violates the equal-protection rights of gays. But the judge's ruling did not turn on that argument.

Instead, Fox noted that the Arkansas Legislature gave the child-welfare board the power to "promote the health, safety and welfare of children," but the ban does not accomplish that. Rather, he said the regulation seeks to regulate "public morality" — something the board was not given the authority to do.

"The testimony and evidence overwhelmingly showed that there was no rational relationship between the ... blanket exclusion [of gays] and the health, safety and welfare of the foster children," Fox wrote.

Rita Sklar, director of the Arkansas chapter of the ACLU, expressed satisfaction with the ruling.

"He made extensive findings of fact and he accepted everything we entered into the record refuting the state's reasons for the regulation, including these ridiculous claims that gay people are more likely to do drugs or have diseases," Sklar said.

Arkansas allows gays and lesbians to adopt children permanently, and its specific ban on fostering is unique.

A Florida ban on adoptions by gays and lesbians was recently upheld in a federal court and an appeal by the ACLU is pending before the Supreme Court.

Utah and Mississippi also restrict gay adoptions. Mississippi prohibits gay couples from adopting, but not gay or lesbian individuals. Utah's ban is a state law that bars any cohabiting couples who are unmarried — gay or heterosexual — from adopting or fostering.

Fox heard extensive testimony in the Arkansas case over the past year. Several board members testified that they had personal problems with the idea of gays and lesbians engaging in sex.

Fox cited the testimony of sociologists and psychologists that gay people can be as loving and caring foster parents as heterosexuals, and that the children of gay adoptive parents can be as well-adjusted as those raised by heterosexual couples.

When Kathy L. Hall, lawyer for the state board, argued at the end of the trial that social mores stand against homosexuals serving as parents, Fox noted that women were once prohibited from voting and racially mixed marriages were illegal in many states.

Hall could not be reached for comment Wednesday. Messages left at her office and on her cell phone were not immediately returned.

At the trial, she argued that foster children were under particular stress and in need of normalcy. She said the state needs to look out for the best interests of those children.

"It's one thing to hear about it [homosexuality] or see it on TV as opposed to knowing it's going on in the room next door," Hall said.