Arkansas Supreme Court Unanimously Overturns Ban on Foster Parenting by Gay People

Affiliate: ACLU of Arkansas
June 29, 2006 12:00 am

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ACLU of Arkansas
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LITTLE ROCK, AR – In a unanimous decision cheered by child welfare advocates nationwide, the Arkansas Supreme Court today struck down a regulation that banned lesbian and gay people from serving as foster parents. The decision ends a seven-year legal battle by the American Civil Liberties Union.

Pointing to the findings of a lower court that overturned the ban, the Court criticized the Child Welfare Agency Review Board’s reasons for enacting the regulation, writing, “These facts demonstrate that 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.” The Court went on to say that the state’s argument to the contrary “flies in the face” of the scientific evidence about the suitability of lesbian and gay people as foster parents. The Court added that “the driving force behind adoption of the regulation was not to promote the health, safety, and welfare of foster children, but rather based upon the Board’s view of morality and its bias against homosexuals.”

“The Arkansas Supreme Court clearly understood what social scientists and every respected child welfare organization have been saying for years: There is no reason to deprive children of good homes by excluding lesbian and gay people from serving as foster parents,” said Rita Sklar, Executive Director of the ACLU of Arkansas. “We have a shortage of foster homes in Arkansas, especially for teenagers and sibling groups. Thanks to today’s ruling, Arkansas’ foster children have a better chance of finding loving homes.”

The lawsuit challenged a state regulation that banned gay people and anyone living in a household with a gay adult from being foster parents and was filed against the state in 1999. Several prominent child welfare groups took an interest in the case, with friend-of-the-court briefs being submitted by Arkansas Advocates for Children and Families, the 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 B. Donaldson Adoption Institute. These groups urged the court to strike down the exclusion because it works against the best interests of foster children.

“This is a wonderful day for the foster children of Arkansas because it means that more stable, loving homes will be available to them,” said Jim Harper, L.C.S.W., L.M.F.T., a Little Rock social worker who works with abused children and their families. “Social science research has consistently shown that gay people are just as able as straight people to provide safe, nurturing homes and their children are just as well-adjusted as anyone else’s children. This ban was never about protecting children’s best interests, and it’s wonderful that it’s been struck down.”

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 automatically disqualified from doing so by the ban.

“There is already a rigorous individualized screening procedure in place that ensures that only those who can provide a safe, stable, healthy home are approved as foster parents,” said Leslie Cooper, a senior staff attorney for the ACLU Lesbian Gay Bisexual Transgender Project, who argued the case before the court. “Today’s ruling means that gay people will go through the same screening process as any other applicants, rather than be automatically rejected no matter how qualified they are.”

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.

More information on the case, Howard v. Child Welfare Agency Review Board, can be found online at

Selected Findings of Fact Cited by Arkansas Supreme Court
in Howard v. Child Welfare Agency Review Board
June 29, 2006

In its decision in Howard v. Child Welfare Agency Review Board unanimously striking down the state regulation banning gay people and people with gay adults living in their homes from serving as foster parents, the Arkansas Supreme Court cited the following findings of fact based on the scientific evidence presented at the trial court:

  • Children of lesbian and gay parents are just as well-adjusted as children of heterosexual parents.

  • Being raised by gay parents doesn’t increase the risk of psychological, behavioral, academic, gender identity, or any other sort of adjustment problems.

  • Being raised by gay parents doesn’t prevent children from forming healthy relationships with their peers and others.

  • There is no factual basis for saying that gay parents might be less able to guide their children through adolescence than heterosexual parents.

  • There is no evidence that gay people, as a group, are more likely to engage in domestic violence or sexual abuse than heterosexual people.

  • The state allowed gay people to serve as foster parents in Arkansas before the ban and does not know of any child whose health, safety, or welfare have ever been endangered by living with lesbian and gay foster parents.

  • The exclusion of gay people and people with gay family members may be harmful to children because it excludes a pool of effective foster parents.

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