Gay legal group challenges foster laws

Illustrated rainbow pride flag on a white background.

A seven-year legal battle over the blanket exclusion of lesbian and gay people from serving as foster parents in Arkansas drew closer to an outcome this past week as attorneys for the American Civil Liberties Union (ACLU) asked the State Supreme Court to uphold an earlier court decision striking down the state’s ban.

“Every mainstream child welfare organisation has been saying for years that preventing lesbian and gay people from serving as foster parents has no basis in social science and only hurts the children the state should be protecting,” said Rita Sklar, executive director of the ACLU of Arkansas. “Children who need foster homes deserve better than to be deprived of good homes just so the state can make a misguided political statement against gay people.”

The lawsuit, challenging a state regulation that bans gay people and anyone living in a household with a gay adult from being foster parents in the state, was filed against the state in 1999 by four prospective foster parents. Several prominent child welfare groups have taken an interest in the case, with friend-of-the-court briefs being submitted by the Arkansas Advocates for Children and Families, Child Welfare League of America, the National Association of Social Workers and its Arkansas chapter, the American Psychological Association and its Arkansas chapter, and the Evan Donaldson Adoption Institute.

In a landmark ruling in December of 2004, a Pulaski County Circuit Court judge flatly rejected all of the claims the state had made about gay and lesbian people’s suitability as parents. After five days of expert testimony, the judge found that the foster care ban can hurt children by eliminating a pool of effective foster parents; that children of lesbian and gay parents are just as well adjusted as children of straight parents; and that there are no reasons that health, safety, or welfare of a foster child might be negatively impacted by living in a foster home where there is a gay person present.

“Under state law, every potential foster parent is already required to undergo strict screening before being qualified to foster parent. The trial judge understood that blanket exclusions do nothing to advance the welfare of foster children,” said Leslie Cooper, a senior staff attorney for the ACLU Lesbian Gay Bisexual Transgender Project, who argued the case before the court. “Categorical bans like this one do nothing but tie the hands of child placement professionals and unnecessarily disqualify people who could provide safe, secure homes.”

Arkansas’s Child Welfare Agency Review Board established a policy in 1999 that “no person may serve as a foster parent if any adult member of that person’s household is a homosexual.” That same year, the ACLU filed a lawsuit challenging the policy on behalf of a lesbian from Fayetteville, a gay couple from Little Rock, and a heterosexual man from Waldron whose gay son sometimes lives at home. All of them want to serve as foster parents but are prevented from doing so by the ban.

Cooper and James Esseks of the ACLU’s Lesbian Gay Bisexual Transgender Project, and ACLU of Arkansas cooperating attorney John Burnett represent the prospective foster parents.

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