An Arkansas judge Wednesday declared unconstitutional a state ban on placing foster children in any household with a gay member.
Ruling in a case brought by the Arkansas chapter of the American Civil Liberties Union, Pulaski County circuit judge Timothy Fox said the state's 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 that foster children cannot be placed in any home with a gay member
under its roof.
"Throughout this case, the state has relied on ugly stereotypes to deny children in the Arkansas foster care system the chance of having the widest possible pool of foster families available to them," said Rita Sklar, executive director of the ACLU of Arkansas. "We're very pleased that the court saw through these arguments and has recognized that gay and lesbian people can provide homes just as loving and stable as anyone else's."
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. While acknowledging that the ban discriminated against gays, Fox said that homosexuals are not recognized under the law as a "suspect class," as women and racial minorities are.
Instead, he said the Arkansas legislature gave the child welfare board the power to "promote the health, safety, and welfare of children" and that the ban does not accomplish that. He said the regulation instead seeks to regulate "public morality"--something the board was not given the authority to do.