Decision near in Arkansas gay foster parent case
December 22 2004 1:00 AM ET
A Pulaski County, Ark., judge has heard the last bit of evidence in a challenge to Arkansas's ban on gay foster parents and said he expects to rule on the five-year-old case by the end of the year. The state in 1999 said foster children cannot live in a home where sexually active gays or lesbians are present, believing the arrangements add stress to the children's lives. The American Civil Liberties Union says the policy violates the constitutional rights of gay people.
Pulaski County circuit judge Timothy Fox said after a hearing Monday that he wants to rule by the end of the year to put an end to the long-running battle. In their closing arguments, the state concentrated on societal mores while the ACLU said popularly held beliefs couldn't justify an unconstitutional policy. ACLU lawyer Leslie Cooper said foster children could be as loved and as well-adjusted with gay foster parents as with heterosexuals, who do not necessarily have to be married under Arkansas law. "We have successfully refuted these outrageous assertions about gay people," Cooper said.
But state lawyer Kathy L. Hall said the ACLU didn't address the impact on 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. "Then this is real. It's not abstract anymore." She acknowledged that heterosexuals can be sexually active in a foster household, "but this is where it goes back to societal mores."
But Fox questioned whether society's moral beliefs could change. "If we woke up tomorrow and a poll showed the public looked down on people who wore glasses, would it be the state's position to exclude them?" Fox asked. "Things change, don't they? Not long ago, women couldn't vote, and [an interracial relationship] was against the law."
From the witness stand, Pepper Schwartz, a sociology professor at the University of Washington, disputed studies cited by the state that alleged that gays are more promiscuous and less stable in their relationships. Schwartz said a study she conducted in the 1970s and another study conducted by sociologist Lawrence Kurdek in the 1990s showed that gay and lesbian couples are as likely to stay together as unmarried cohabiting couples. She said heterosexuals have the benefit of marriage, which acts as a constraint against breakups, and that children also act as a deterrent against breakups. Schwartz said that if same-sex couples were allowed to marry and had more opportunities to raise children, they presumably would stay together as long as married heterosexuals with children.
In Florida a federal appeals court upheld a state ban on adoptions by gays. Hall said Arkansas permits gays and lesbians to adopt children but doesn't allow them to provide foster care because those children need to be taken out of stressful situations temporarily. The state Child Welfare Review Board, which administers the state's foster care and adoptions programs, imposed the ban, and the ACLU filed the lawsuit that year on behalf of four Arkansans--a gay couple, a lesbian, and a heterosexual man with a gay son.