In a unanimous ruling upholding a lower court decision that a state ban was unconstitutional, the high court said that no connection exists between a foster child's well-being and the sexual orientation of that child's foster parents.
Justices agreed with Pulaski County Circuit Judge Tim Fox's ruling that the ban seeks to regulate "public morality" — something the board was not given the authority to do. The high court also said that in adopting the ban, the state Child Welfare Agency Review Board violated the separation of powers doctrine.
"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," Associate Justice Donald Corbin wrote in the opinion.
In addition, the court said the testimony of a board member demonstrated that "the driving force between adoption of the regulations 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."
The ruling said the ban was "an attempt to legislate for the General Assembly with respect to public morality."
The Arkansas Department of Health and Human Services had appealed a 2004 decision by Fox, who said the child welfare board could not bar homosexuals from becoming foster parents. The board instituted the ban in March 1999, saying children should be in traditional two-parent homes because they are more likely to thrive in that environment.
Four Arkansans sued, saying homosexuals who otherwise qualified as foster parents had been discriminated against. They contended the ban violated their right to privacy and equal protection under the state and U.S. constitutions.
The Arkansas Supreme Court opinion also said that being raised by homosexuals doesn't cause academic problems or gender identity problems, as the state had argued.
Lawyers for the American Civil Liberties Union represented the plaintiffs in the case. Rita Sklar, executive director of the ACLU in Arkansas, said she was pleased with the decision.
Arkansas Health and Human Services spokeswoman Julie Munsell said the state has followed Fox's direction not to use the ban and will continue to do so. Munsell said the department did not know if any homosexuals have applied to become foster parents, but said the plaintiffs have not sought foster parent status since Fox's ruling.
"We still obviously maintain that we are operating in the best interest of the children who are in foster care custody, but we will follow the instructions of the court in the application process," Munsell said.
Associate Justice Tom Glaze did not participate in the ruling. Replacing Glaze was Special Justice Franklin A. Poff, who joined in the decision.
In a concurring opinion, Associate Justice Robert L. Brown said the state's arguments for the ban "have no foundation in objective research." Brown said the trial court should have also found the policy violated constitutionally protected rights regarding privacy and equal-protection.
"There is no question but that gay and lesbian couples have had their equal-protection and privacy rights truncated without any legitimate and rational basis in the form of foster-child protection for doing so," Brown wrote.