Arkansas Gay Foster Parent Ban Nixed

State high court finds separation of powers flaw, punts on due process, equal protection

Four gay plaintiffs in Arkansas, turned away when they tried to register to become foster parents because of that state’s ban on their participation, won an enormous victory on June 29 when the Arkansas Supreme Court unanimously affirmed a ruling by Judge Timothy Davis Fox of the Pulaski County Circuit Court holding the prohibition invalid.

The four were represented by the American Civil Liberties Union.

Obnoxious members of the Arkansas Department of Human Services and Child Welfare Agency Review Board in 1999 decided to jump on the right-wing bandwagon that was attacking LGBT people who want to serve as foster and adoptive parents. They voted to amend the regulations governing who can be foster parents to provide that “no person may serve as a foster parent if any adult member of that person’s household is a homosexual.”

The regulations defined the term homosexual by reference to the state’s sodomy law, which was subsequently thrown out by the Arkansas Supreme Court, before the U.S. Supreme Court overturned all such statutes nationwide in its 2003 Lawrence v. Texas ruling.

At trial, Judge Fox had been confronted with several constitutional theories challenging the regulation. Both the Arkansas and United States Supreme Courts have ruled that criminal penalties for consensual gay sex are unconstitutional under the due process requirements of the state and federal Constitutions, so premising a disqualification as a foster parent on such conduct imposes an unconstitutional burden, argued the plaintiffs. Furthermore, there was no rational justification for treating LGBT applicants differently from others, so the state policy also violated the equal protection clause.

The plaintiffs also pointed out that a regulatory body such as the Review Board is limited to implementing legislative policy, and Arkansas statutes regulating the foster care system had no provisions that justified ruling out gay people categorically.

Fox struck down the regulation based on the last of these arguments, which he characterized as a “separation of powers” issue—impermissible legislation by an executive branch agency of a policy not established by the Legislature. Significantly, Fox specifically rejected the plaintiffs’ due process and equal protection arguments.

Both the state and the plaintiffs appealed, the state arguing that Fox erred in striking down the regulation, while the plaintiffs maintained that he was wrong to reject their due process and equal protection claims.

Writing for the Arkansas Supreme Court, Justice Donald L. Corbin found that Fox ruled correctly on the separation of power theory. The statute authorizes the Review Board to establish regulations that “promote the health, safety, and welfare of children.” Fox and the entire Supreme Court agreed that there was no reasonable basis for believing that disqualifying all gay people from being foster parents would advance the goal.

In fact, Fox specifically found that the evidence showed that children raised by gay parents turn out just fine, pointing to the expert testimony presented by the plaintiffs. Fox and the Supreme Court found that the Board members who favored the amendment based their support on their moral disapproval of homosexuality, a ground for adverse policymaking that was ruled out under the state Supreme Court’s sodomy decision as well as the U.S. Supreme Court’s Lawrence decision.

Since the Legislature did not authorize the Review Board to promote its view of morality, “the Board was acting outside its areas of responsibilities when it enacted [the regulation] and was in violation of the separation-of-powers doctrine.”

Corbin wrote that since the court was affirming Davis’s ruling, there was no need to address the plaintiffs’ cross-appeal on their other constitutional theories, but this proved unsatisfactory to Justice Robert L. Brown, who wrote a solo concurring opinion arguing that the regulation also violated the due process and equal protection rights of potential foster parents who happened to be gay.

“There is no question but that gay and lesbian couples have their equal-protection and privacy rights truncated without any legitimate and rational basis in the form of foster-child protection for doing so,” he wrote.