Alexander Hamilton seemed to be pretty close to the mark when he implied in The Federalist Papers that elected judges could not be counted on to safeguard the rights of minorities from “the occasional ill humors in the society.”
Every so often even a Southern court proves him and all the other founding fathers wrong on that point. Three years ago a nearly unanimous Arkansas Supreme Court struck down the Arkansas sodomy law, which was a monument to the popular suspicion and hatred of people who discover that they are homosexuals. Now an elected circuit judge, Timothy Fox, has struck down a state regulation that prevents any household where a homosexual dwells from being foster parents.
Fox had the gall to rule what the overwhelming evidence in a trial in Pulaski Circuit Court demonstrated: that there was nothing inherent in being gay that made a couple of adults bad foster parents. The reaction was not long coming. The Arkansas Democrat-Gazette called the ruling absurd and called on higher courts to reverse it. The paper thought it was all right to ban discrimination in jobs and housing but not foster care, never mind the evidence.
The legislature is more likely than the courts to undo the ruling. The judge left open the possibility that the state’s lawmakers might want to invest the bigotry against gay men and women with the majesty of state law, which he said they would be within their rights to do under the Constitution. We will not have to wait long to see.
The dossiers of state bureaucracy are replete with the sad stories of bereft children who suffered because the state could not find a good foster home for them. Not many are willing to be foster parents after you subtract those who do it for the pittance they are paid. Witnesses at the trial of Howard v. Arkansas Child Welfare Agency Review Board said foster-care specialists and the social work faculty at the University of Arkansas at Little Rock were dismayed in 1999 when the child welfare board adopted a rule barring a whole class of people from being foster parents: any household where a practicing homosexual happened to reside.
Homosexual couples could adopt children but they could not be temporary custodians of children whose distress made them temporary wards of the state. Board members said the Bible called homosexuality a sin and they believed children should not spend a day in the presence of iniquity. The American Civil Liberties Union sued on behalf of several men and women who wanted to be foster parents but were barred by the rule. (Transparency is supposed to dictate disclosure here of my long, active association with that organization.) The case finally went to trial last fall in Judge Fox’s court.
One of the plaintiffs and his wife, who reared two children and founded a camp for children with cancer and other catastrophic illnesses, wanted to be foster parents but were barred after the father answered a questionnaire that an adult homosexual son sometimes lived at home.
Fox ruled that the ban against gay parents was at odds with the law’s direction to the board to base its rules on the health, safety and welfare of children. He said the overwhelming evidence at the trial led to the conclusion that being raised by gay parents did not increase the risk of adjustment, psychological, behavioral or academic problems, did not cause problems with their sexual identity and did not prevent children from forming healthy relationships. The legislature might have added a moral judgment about homosexuality to the standards or delegated that decision to the review board, but it did not.
The decision may be a transient victory for prospective gay parents and needy children because the legislature may quickly overturn it. Judge Fox rejected the ACLU’s contention that the ban violated the permanent guarantee of equal protection for gay parents because he said no one had a right to be a foster parent and the legislature theoretically had a legitimate interest in promoting “public morality,” whatever it thought that was, if it elected to do it. The judge was unwilling to substitute his own notions about what it was. But he suggested that the legislature and others involved with the issue consult the expert testimony in the case so that they could separate information from mere assumption.
Judge Fox discharged a little generic wisdom in the end, something that Hamilton, with his concerns about society’s passing ill humors, might have appreciated: “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. Things change, sometimes too fast for those who are comfortable in the skin of the status quo, sometimes excruciatingly slow for those waiting their time under the sun.”