:Arkansas Democrat-Gazette; :Dec 30, 2004; :Front Section; :1

Ban on foster children in residences with gays unlawful, judge finds


    A state regulation banning the placement of foster children in homes with gay adults is unconstitutional, a Pulaski County Circuit judge declared Wednesday.

    Judge Tim Fox ruled that testimony in the case did not show that gay foster parents posed a threat to the health, safety or welfare of children. Therefore, the judge concluded, the state Child Welfare Agency Review Board improperly created the regulation out of a sense of "public morality" — an authority the Legislature didn’t give the board.

    The judge issued an injunction banning enforcement of the regulation.

    Fox wrote that the testimony "has presented us all with an excellent opportunity to replace ignorance with knowledge and to make an informed decision based on information as opposed to assumption. ... Things change, sometimes too fast for those who are comfortable in the skin of the status quo, sometimes excruciatingly slowly for those waiting their time under the sun."

    The judge did not rule, as the plaintiffs hoped, that the regulation violated a person’s right to privacy or the equal protection provisions of the state and federal constitutions. He said the board’s regulation violated the separation of powers.

    Julie Munsell, spokesman for the state Department of Human Services, said the agency will appeal the decision "because we do not believe that we have exceeded the parameters for promoting the health, safety and welfare for the state’s foster children."

    For now, though, the department will have to abide by the
injunction, Munsell said. But she said the department, which enforces the board’s policies, always has been able to circumvent the ban if doing so was in the best interest of a child.

    At any given moment, the state is responsible for about 3,000 foster children.

    Fox’s decision pleased William and Carolyn Wagner of Fayetteville, who have cared for more than 80 children over the years but were barred from being foster parents because their adult son, who is gay, sometimes stays in their home.

    William Wagner testified during the trial that he and his wife have opened their home to many children who had been kicked out of their homes because they were or were perceived to be homosexual.

    "Obviously, my husband and I are very pleased, and this means we can now assist the children in our state who would benefit from being placed in our care," Carolyn Wagner said Wednesday. "This is a blessing to all the children in the state of Arkansas."

    Attorneys for the American Civil Liberties Union, which represented four Arkansans who filed suit in 1999 challenging the regulation, applauded the ruling.

    "We’re obviously thrilled that the court recognized that there is no basis for excluding qualified foster parents based on their sexual orientation," said Leslie Cooper, who argued the case along with James Esseks.

    "We are pleased to see that Judge Fox spent a lot of time going through the evidence and came to the conclusion that there is no child welfare basis to exclude families with gay adults from being foster parents."

    The attorney who represented the Child Welfare Agency Review Board said the judge’s decision was a narrow victory for the plaintiffs.

    "They [the ACLU] won on one of the points they argued, but they lost on the rest," said Kathy L. Hall of Little Rock. "Their case has always been about equal protection and right to privacy."

    Hall reiterated that the "board’s position is that this case is not about homosexuals — it’s not about foster parents. This case is about children. It’s always been about children."

    Jerry Cox, executive director of the Family Council, a conservative education and research organization based in Little Rock, said his group followed the case but was not a party to it.

    "I’m disappointed that the judge ruled the way he did," Cox said. "We have always seen this as a child welfare issue rather than a gay rights issue. All societies regulate adoptions and foster care on the basis of what’s best for the child."

    Cox added, "It’s been our view all along that it’s not right to take a child from one dysfunctional situation and put them in another situation that may be dysfunctional in another way."

    Rita Sklar, executive director of the ACLU of Arkansas, said she was gratified that Fox cited the testimony of expert witnesses put on by the plaintiffs.

    She said proponents of the ban had made "absurd assertions" that gay people were more likely to abuse children, have HIV, the virus that causes AIDS, or use illegal drugs.

    "We were happy to have the opportunity to show that these were illusions, that there was no basis in fact for them," Sklar said. "The bottom line is that this is not a policy that will further the health, safety and welfare of children."

    "We were waiting for our day in court to prove that you can think whatever you want about people, but you can’t discriminate against them. The good thing that will come out of this is that there will be more qualified people that can be foster parents," she said.

    Sklar and Cooper said they had left messages with the plaintiffs in the suit but had not spoken with them about the judge’s ruling by late Wednesday.

    The suit claimed that the board’s ban discriminated against qualified foster parents.

    The policy banned homosexuals or people with a homosexual adult in the household from becoming foster parents. The board imposed the ban in March 1999 after one of its members said children fare better in traditional two-parent homes that include a mother and a father.

    The trial began in March but was delayed for more than six months after an expert witness for the state died in a car crash on the eve of his testimony.

    When testimony in the suit continued in October, the state called an expert witness, George Rekers, a psychologist at the University of South Carolina who testified that placing children in homes containing homosexuals increases their stress.

    Rekers also testified that a homosexual household is an "inferior family structure" in terms of promoting the best interest of a child, according to the judge’s ruling. But Dr. Michael Lamb, a psychiatrist, testified for the plaintiffs that no scientific study showed that homosexuals were poorer parents than area heterosexuals.

    Fox concluded his decision by noting, "It is given to the courts to be the guardians of the four corners of our constitution, to insure that the ‘tyranny of the majority’ does not infringe upon the rights given to all, including the minority."

    The judge continued, "We must always remain mindful that we are creatures of the temporal, that some of the cherished societal mores of our present may very well one day become the regretted bigotry of our past."