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December 29, 2004
Arkansas Court Strikes Gay Foster Parent Ban
A Little Rock circuit court judge has struck down the state ban against gay foster parents.....but not on equal protection grounds.
Fox's ruling is instead based on the separation of powers clause. He said the Arkansas Legislature gave the Child Welfare Board the power to promote the health, safety and welfare of children, but he commented that the ban does not qualify under those legal obligations.
Fox said the rule at issue seeks to regulate "public morality" -- something that the board was not given the authority to do.
The Arkansas ACLU chapter is saying this is a big victory with nationwide implications. I hate to break up their happy dance, but I'm not so sure about that. Those are some pretty narrow grounds, and there's the implication from the judge that if the ban had been implemented in a different way (say from the legislature), it would've passed constitutional muster.
The judge acknowledged that the ban was discriminatory against gays and lesbians. But he concluded that homosexuals are not protected as a class, such as women and ethnic minorities.
And as far as I know, he's correct. Generally, the courts have not given homosexuals the same constitutional protections as women or ethnic minorities. Not saying that's good or bad, just that that's the way it is. For now anyway.
It'll be interesting to see if the judge's ruling holds up on appeal. (I haven't been able to find his opinion online so far, but I'll update if I do.)
Posted by Rita at December 29, 2004 06:07 PM