Page 1 of the June 30, 2006, Arkansas Democrat-Gazette reports a landmark case in child welfare law in Arkansas: The state Supreme Court struck down a state regulation barring gay people from becoming foster parents.
The invalid 1999 regulation by the Child Welfare Agency Review Board also excluded anyone whose household included a gay adult.
The case — Department of Human Services and Child Welfare Agency Review Board v. Matthew Lee Howard; Craig Stoopes; Anne Shelley; and William Wagner — is better known as Howard v. Arkansas. The American Civil Liberties Union sued the state agency in 1999 on behalf of four Arkansans who were barred from fostering under the regulation: Howard and Stoopes were a gay couple; Shelley, a lesbian; and Wagner, a married man whose gay son sometimes lived with him.
The Child Welfare Agency Review Board was created by the state Legislature in 1997 and consisted of nine citizens appointed by then Gov. Mike Huckabee. The board made regulations for state child-welfare agencies. The agencies enforced the board’s regulations, including the department’s Children and Family Services Division.
In a unanimous decision written by Justice Donald L. Corbin, the court observed that the review board only had authority to enact rules and regulations to promote the health, safety and welfare of children but it had instead sought to “exclude a set of individuals from becoming foster parents based upon morality and bias.”
The decision upheld a 2004 ruling by Pulaski County Circuit Judge Tim Fox. The high court agreed with Fox that the review board had violated the separation-of-powers doctrine. The courts agreed that no connection existed between a foster child’s well-being and the sexual orientation of that child’s foster parents: Being raised by gay parents did not increase the risk of problems in adjustment or the risk of psychological problems or the risk of behavioral problems for children, nor did it prevent children from forming healthy relationships with their peers or others or cause academic or gender identity problems.
“There is no factual basis for making the statement that being raised by lesbian or gay parents has a negative effect on children’s adjustment,” the high court opinion stated.
The court also found that the blanket exclusion could hurt children by excluding a pool of effective foster parents.
An attempt to encode a gay-foster ban as state law failed in the General Assembly in 2007. In 2008, voters approved an initiated act to ban adoption or fostering by unmarried, cohabiting couples. Proponents of this act claimed its opponents had a “gay agenda.” A two-year court battle ensued. In 2011, the state Supreme Court ruled Act 1 violated the stateConstitution’s protection of individual privacy.
— Celia Storey
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