With all the hoopla over the U.S. Supreme Court's rebuke of King George's purportedly unlimited wartime powers in the
Hamdan case yesterday, another Supreme Court issued a ruling which has a far greater impact on the daily lives of families headed by same-sex couples. While the U.S. Supreme Court's case impacted the 500 or so detainees at Guantanemo Bay, the Arkansas Supreme Court's decision in
Dept. of Human Services v. Howard directly impacts the rights of thousands of gay and lesbian parents in Arkansas and their children (and could have a spill-over to impact millions nationwide).
But, as is all too often is the case in the struggle for equality for homosexuals in this country, the good news was tempered with some bad news. As Dickens said, it was the best of times, and it was the worst of times.
Back in 1999, the Arkansas Child Welfare Agency Review Board enacted a regulation which provided that:
No person may serve as a foster parent if any adult member of that person's household is a homosexual. Homosexual, for purposes of this rule, shall mean that person who voluntarily and knowlingly engages in or submits to any sexual contact involving the genitals of one person and the mouth or anus of another person of the same gender, and who has engaged in such activity after the foster home is approved or at a point in time that is reasonably close in time to the filing of the application to be a foster parent.
Prior to the adoption of this regulation, homosexuals in Arkansas could be (and were) foster parents, and the Review Board admitted that there were no known complaints ever made about homosexual foster parents.
The member of the Board who introduced this regulation, Robin Woodruff, said that her motivation for the regulation was that, in her opinion, (1) same-sex relationships are wrong; (2) homosexual behavior is a sin; (3) homosexuality violates her biblical convictions; (4) adults who have same-sex orientation should remain celibate; and (5) she wuold not be a proponent of her children spending time with openly gay couples. Another member of the Board, James Balcom, said that he supported the regulation because he believed that gay relationships are immoral and that he had a moral objection to people being in a household where there is a same-sex relationship going on.
Gay foster parents sued the State, and after a five year lawsuit, the trial court struck down the regulation. Yesterday, the Arkansas Supreme Court unanimously upheld the lower court and held that the regulation was unconstitutional.
In the course of the decision, the Arkansas Supreme Court affirmed the following facts:
Being raised by gay parents does not increase the risk of problems in adjustment for children.
Being raised by gay parents does not increase the risk of psychological problems for children.
Being raised by gay parents does not increase the risk of behavioral problems.
Being raised by gay parents does not prevent children from forming healthy relationships with their peers or others.
Being raised by gay parents does not cause academic problems.
Being raised by gay parents does not cause gender identity problems.
Children of lesbian or gay couples are equivalently adjusted to children of heterosexual parents.
There is no factual basis for making the statement that heterosexual parents might be better able to guide their children through adolescence than gay parents.
There is no factual basis for making the statement that the sexual orientation of a parent or foster parent can predict children's adjustment.
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.
There is no reason in which the health, safety, or welfare of a foster child might be negatively impacted by being placed with a heterosexual foster parent who has an adult gay family member residing in that home.
There is no evidence that gay people, as a group, are more likely to engage in domestic violence than heterosexuals.
There is no evidence that gay people, as a group, are more likely to sexually abuse children than heterosexuals.
To those of us who gay or who know a gay person, none of these facts should come as a huge shock. But they are highly controversial for the Child Welfare Agency Review Board in Arkansas.
The basis for the Court's decision yesterday was that the Board had exceeded the authority given to it by the Arkansas legislature...in many ways, the same basis on which the US Supremes decided Hamdan. The Arkansas Supreme Court ruled that the regulation was unconstitutional because it it violated the separation of powers; the Review Board had legislated in an area which was not granted to it by the legislature.
The Court found that the legislature had given the Board authority to promulgate regulations to promote the "health, safety, or welfare of children." Pointing to the facts set out above, the Court ruled that the regulation did nothing to protect the health, safety or welfare of children. Wrote the Court:
These facts demonstrate that there is no correlation between the health, welfare, and safety of foster children and the blanket exclusion of any individual who is a homosexual or who resides in a household with a homosexual. While DHS argues that the regulation protects the health, safety, and welfare of foster children because "we do not know the effect of temporary homosexual parenting," this argument flies in the face of the evidence presented by Appellee's experts and the circuit court's findings of fact.
Rather, the Court found that the Review Board had based its regulation on the biases and morality of its members...and those are not criteria on which the legislature said the Board could base its decisions.
...the driving force behind adoption of the regulation was not to promote the health, safety, and welfare of foster children, but rather based upon the Board's views of morality and its bias against homosexuals...Thus, only other underlying purpose behind the enactment of the regulation is morality. The General Assembly did not include...the promotion of morality in its delegation of power to the Board. Consequently, the Board was acting outside its areas of responsibility when it enacted Regulation 200.3.2, and was in violation of the separation-of-powers doctrine.
So that's the good news. Now for the bad news.
The Governor of Arkansas is Mike Huckabee. Gov. Huckabee is a Baptist minister, and is widely expected to run for the GOP nomination for president in 2008. He is perceived as trying to compete for the conservative evangelical GOP primary voter with Sen. Sam Brownback of Kansas. And Gov. Huckabee is going to try and show his conservative evangelical bona fides by beating up on the gays of Arkansas.
He shouldn't have to...after all, Gov. Huckabee hasn't just banned gay marriage in Arkansas...he's created "covenant marriage." He and his wife entered into a covenant marriage on Valentines Day 2005...that's how conservative evangelical he is.
But now Gov. Huckabee can attack the gays of his state to score political points. And he's wasted no time.
Arkansas Gov. Mike Huckabee said Friday he hopes the Legislature considers reimposing a ban on gay foster parents, struck down a day earlier by the state Supreme Court.
"I'm very disappointed that the court seems more interested in what's good for gay couples than what's good for children needing foster care," Huckabee said through his spokeswoman Alice Stewart.
And so now, the bad news is that the Arkansas General Assembly will engage in a hurtful, discriminatory, and bigoted debate in which it will ignore all of the facts and all of the evidence that the Supreme Court noted. Gay parents in Arkansas will no doubt be called child molestors, immoral people, unChristian, evil, a threat to society, etc. on the floor of the Arkansas House and Senate.
This debate will be hurtful to the thousands of gay parents in Arkansas, and in particular to their children who will be confused as to why adults are calling their parents evil and immoral.
And the people who will suffer the most are the foster children of Arkansas, who have already been dealt a lousy hand in their young lives. They will be denied the care of foster parents who will love them for who they are.
Gov. Mike Huckabee, the "family values" candidate for the GOP nomination.