January 7, 2005

Judge strikes Arkansas ban on gay foster parents

by Anthony Glassman
with wire reports

Little Rock, Arkansas--A Pulaski County circuit court judge on December 29 struck down the state?s ban on placing children in foster homes with gay men or lesbians in them.

Judge Timothy Fox brushed aside constitutional equal protection arguments, stating that gays were not a protected group. He ruled that the state agency in charge of foster care overstepped its powers in trying to regulate public morality.

The charter of the Child Welfare Agency Review Board gives it the authority to regulate the health, safety and welfare of children.

Fox also dismissed evidence presented by the state arguing that gay men and lesbians are inferior parents or that children in heterosexual households are better off.

The judge called the testimony of an expert witness for the state ?extremely suspect,? according to the San Francisco Chronicle.

Fox decided that psychologist George Rekers ?was there primarily to promote his own personal ideology.?

Rekers, who is also a medical professor at the University of South Carolina, performs ?reparative therapy? in his practice, attempting to ?cure? homosexuality.

While the case will be appealed, Arkansas legislators are already preparing to add the regulation of public morality to the powers already enjoyed by the Child Welfare Agency Review Board.

?No matter what happens on appeal, there?s nothing now to stop the legislature from going in next time and say, ?Okay, board, we now give you the authority to regulate health, safety, welfare and morality of children?,? said Kathy L. Hall, the lead state attorney in the case.

The suit was brought against the state by the American Civil Liberties Union on behalf of three plaintiffs.

The first, William Wagner, is a heterosexual married man who, with his wife, shelters LGBT teens who faced abuse at home. Wagner?s gay son occasionally lives with him.

The second is Matthew Lee Howard, who has been with his partner for 19 years. The couple is raising two children.

The final plaintiff is Anne Shelley, a community organizer for non-profits. She cannot foster because she is a lesbian.

The regulation only applies to foster parenting, not to adoption by gay and lesbian individuals or same-sex couples.

Advocates for the rights of LGBT people are excited about the ruling, which they believe might help battles in California and Florida.

In California, religious groups filing briefs supporting the ban on same-sex marriage often cite procreation and child-rearing as the main purpose of marriage, and point to studies, discredited in Fox?s ruling, that same-sex couples are inferior parents. Attorney General Bill Lockyer, however, has not been using that tack in his arguments in the case, so Fox?s decision might not be a useful tool.

However, a federal appeals court upheld Florida?s ban on adoptions by gay men and lesbians, in part using the same arguments that Arkansas used, that? same-sex households are not suited for rearing children. The case has been appealed to the Supreme Court and is awaiting the court?s reply on whether or not it will consider it.