by Max Brantley
The Arkansas Supreme Court ruled unanimously today that gay people may be foster parents. It upheld a lower court ruling that the state prohibition was unconstitutional and driven by moral views about homosexuality. Here's a link to a PDF of the opinion on the ACLU website.
The opinion restated the utter absence of evidence that any children who had been foster children of homosexuals had suffered harm in the past and an absence of any evidence otherwise of the harm of gay parents. Thus, the Court concluded that the ban, adopted by the Child Welfare Review Board, exceeded the power given it by the legislature to protect the welfare of children.
"This testimony demonstrates that the driving force behind adoption of the regulation was not to promote the health, safety and welfare of foster children but rather based on the Board's views of morality and its bias against homosexuals," said the opinion by Justice Donald Corbin. Two Board members had testified about their disapproval of homosexuality.
Having decided the opinion on the separation of powers issue, the court majority declared moot the cross-appeal by plaintiffs that the rule also violated the equal protection provision of the Constitution and the right to privacy and intimate association.
In a concurring opinion, Justice Robert Brown said he also would have upheld the arguments on violation of equal protection and the right to privacy.
The opinion raises the question of whether the legislature might grant the board the power to include morality as a consideration in setting rules for foster parents. If so, then the other constitutional arguments would certainly be revived. Brown's concurrence makes clear where he would stand. The welfare of a child is paramount. But "there is no rational basis" in evidence for arguing that gay foster parents harm children, he said, as did the rest of the Court. "And," said Brown, "the 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 rest of the court was silent on that point Thursday, however.
Justice Tom Glaze did not participate in Thursday's decision. Franklin Poff, appointed by Gov. Huckabee to replace him as a special justice, joined Corbin's opinion.
AND THIS JUST IN: Gunner DeLay, Republican candidate for attorney general, is the first to wave the bloody shirt of homophobia. His release on the jump. Also the Family Council with some hokum.
We can be sure Jim Holt will not be far behind.
Is Asa Hutchinson really cut from a different sort of cloth? No.
He was asked about the ruling at a previously scheduled news conference on another subject. He said he was disappointed and defended the board that adopted the ban by saying it was acting in the best interests of children. He said he hoped a legislative "solution" could be found. Probed on why a home with gay foster parents (or, indeed, as in this case, a home with heterosexual parents and one gay child) was not a good environment, Hutchinson essentially sidestepped the question. The majority of Arkansans oppose gay marriage, ergo it must be bad to put children in a home with gay people.
Hutchinson said he hadn't read the full opinion. Apparently. Because he said children must come first. The Supreme Court said exactly the same thing. But, unlike Hutchinson, the court relied on evidence. It demonstrated that the state had presented no evidence that anything but bias against homosexuals supported the decision to ban their participation in the foster parent program. There was no showing of a detrimental effect to children.
Any notion that Hutchinson possesses a shred of moderation or warmth of spirit can be consigned to the scrap heap on which it belonged from the start.
Hutchinson perhaps would benefit from some reading, such as this comment provided by the ACLU, cheering the ruling it won:
“There is already a rigorous individualized screening procedure in place that ensures that only those who can provide a safe, stable, healthy home are approved as foster parents,” said Leslie Cooper, a senior staff attorney for the ACLU Lesbian Gay Bisexual Transgender Project, who argued the case before the court. “Today’s ruling means that gay people will go through the same screening process as any other applicants, rather than be automatically rejected no matter how qualified they are.”
Mike Beebe, you ask? We asked some time ago for the reaction of the attorney general and Democratic candidate for governor. Nothing so far.
UPDATE. We now have a statement from Beebe. It follows. It's the rope-a-dope. But, frankly, in this day and time, when the Republicans are trying to round up a lynch mob for gays, it passes for courage:
A child is best raised in a loving home by loving parents. I believe marriage is between a man and a woman. However, the court has ruled on this and the agency will have to abide by that ruling. We must not lose focus on the most important thing here. As the child of a single mother, I realize the focus must be on the child’s interest. We must work to ensure that every young person, whether born into a loving home or put into foster care, has a chance at the American Dream.
GUNNER DELAY STATEMENT
I am extremely disappointed with the court’s decision today concerning gay and lesbian couples serving as foster parents. Just two years ago the people of
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. In spite, 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.
This decision shows the important role the next attorney general will play in the critical social questions of our time because this matter will continue to play out in the courts.
I fully support the State’s policy and pledge to work with the legislature in adopting a law that will embrace the values of Arkansans as well as pass constitutional muster.
The one piece of good news is that it appears the court may have left the door open to address this issue by legislative action and I fully expect that they will take advantage of that opportunity.
FAMILY COUNCIL STATEMENT
“The review board was acting on what they believed was in the best interest of children, not on behalf of special interest groups,” Cox said. “We agree with the review board’s policy, but the judges think the board overstepped its authority. The bottom line is that the issue needs to be addressed either by state statute or by a state constitutional amendment. Either way, this certainly won’t be the end of it.”
Cox said that there are abundant reasons for the review board’s policy, all based on sound research.
“Homosexual foster care necessarily withholds either a mother figure or father figure in a child’s life,” Cox said. “The negative social impact of the past 30 years of epidemic fatherlessness should be enough evidence to convince us that purposely removing either gender from the home is a bad idea. No generally applicable research supports a finding that children do as well with same-sex parents as with opposite-sex married parents. It’s a relatively young area of study, but a growing body of research is demonstrating that parenting by homosexuals provides a less stable environment than married, opposite-sex homes.”
“Having a role model for sexual development is crucial for a child’s psychological health and welfare,” Cox added. “It is absolutely critical that foster children have the most stable home environment possible. Without question, common sense—as well a huge body of social science research—tells us the best place for a child is in a home with a married mom and dad.”