It must have come as a surprise to many that five men and two women whose careers rest to a high degree on the whims and prejudices of voters would agree down to the last one of them that the government had no business steering neglected children away from gay and lesbian foster parents.
Fear and loathing of homosexuals is a litmus test for Republicans, and in these parts it has just enough traction to make cowards of Democrats, too.
No sooner had the Arkansas Supreme Court unanimously struck down the regulations barring households that included a gay or lesbian person from having contact with foster children than Gov. Huckabee and every major candidate for high public office demonstrated by their own contrary example how principled and how sternly dedicated to the law the judges were. The Republican and Democratic candidates for governor and attorney general and the GOP nominee for lieutenant governor all dedicated themselves to seeing that the legislature overturned the decision.
There is no reason to believe that the justices considered themselves particularly courageous. They were simply following the law. They rarely are saddled with a civil case where the evidence and the law are so decisive.
The decision was a sharp rebuke to the Huckabee administration, which changed the rules in 1999 to bar gay or lesbian couples from being foster parents although the state, which has a history of abuse of foster children, admitted that it had never recorded a problem with gay or lesbian foster parents. The Huckabee-appointed Child Care Review Board said the Old Testament disapproved of homosexuals. Huckabee also appointed two of the justices who heard the appeal, including his own Republican legal adviser and close friend, but they went against him, too.
It was a rebuke also for those of us who are skeptical that elected judiciaries can be counted on to stand against popular prejudices, particularly of the religious kind. We remember 1966, when the Arkansas Supreme Court sat for a year on an appeal of Pulaski Chancellor Murray O. Reed’s order striking down the state’s 1928 anti-evolution law because three of the seven justices wanted to uphold Reed’s decision.
The majority thought that to have even a single member voting to permit the teaching of evolution would be ruinous politically to all the justices. One justice, the intrepid Lyle Brown of Hope, refused to give in. On the last day of the term, the court released the 6-1 decision upholding the law only after Brown agreed not to release his stinging dissent. Brown is reported to have stood up in the closed chamber, torn his dissenting opinion in two and thrown it across the table at the chief justice. The majority opinion the next day was two sentences. A unanimous U.S. Supreme Court delivered the rebuke that Brown could not.
But for reasons that are not entirely clear the Arkansas Supreme Court the past 20 years has seemed to pay scant attention to the next election, which is not to say that justices do not have their prejudices. Five years ago, the court voted 5-2 in Jegley v. Picado to strike down the state’s 25-year-old sodomy law. That was two years before the appointed U.S. Supreme Court struck down a similar Texas law and fixed the national standard. Only three of the 2001 Arkansas justices sat on the foster-parent case last week.
Huckabee and Asa Hutchinson, the Republican nominee for governor, said they were disappointed that the court did not put the needs of children before the presumed rights of gay and lesbians who wanted to be parents. Democrat Mike Beebe vacillated and then weighed in with a promise to get the statute changed next year so the state could bar gay foster parents. Both parties’ candidates for attorney general did the same, as did the Republican lieutenant governor candidate. Bill Halter, the Democratic candidate for lieutenant governor, wanted to read the decision.
That would have been a good exercise for the others, too. The court rejected claims based upon the rights of gays and lesbians and said the overwhelming evidence at the trial was that the health and safety of children were not jeopardized by placing them in households with a gay or lesbian person. The law permits the state to regulate the health and safety of children, not determine what someone thinks the Book of Leviticus might countenance.
If the state embraces Leviticus as policy, the state Board of Health will forbid the sale and consumption of shellfish and the new Department of Agriculture will outlaw the planting of multiple crops in the same fields or the weaving of cotton and wool into the same garment, which Leviticus says also will bring down the wrath of God.
If seven stodgy jurists who depend on the electorate or their political sponsors can turn aside the old shibboleths of bigotry, you would think the state’s most gifted politicians could, too. Not yet.