Sunday, July 02, 2006

Gay Foster Parenting Winner

Via Mirror of Justice, I am pleased to report that the Arkansas Supreme Court has unanimously upheld a lower court judgment striking down that state's prohibition on gay foster parenting. Actually, the regulation in question here went beyond prohibiting homosexuals from becoming foster parents, it extended the prohibition to any family which had an adult homosexual living in the household.

I blogged about the lower court ruling previously. It's very interesting reading, as the testimony it describes really demolishes whatever scientific basis there is for preventing homosexuals from starting families.

As for this decision, the ruling was rather narrow, focusing only on separation of powers issues and not the more meaty equal protection or privacy arguments. The Court rather simply noted that the executive agency did not have statutory authorization to make this prohibition, and that the testimony given showed pretty clearly that there was no rational basis connecting such a regulation to the best interests of the child. It said nothing about whether or not such an act would be permissible if the legislature had enacted it directly (although a concurring opinion said that it would not). Hence, this might be another case of a democracy forcing decision--not letting legislatures hide behind executive agencies to avoid going on the record voting for such a draconian violation of gay civil rights. Basing the decision on these grounds makes it harder for the right to argue that this is an "activist" decision--not that they won't try, only that it will be less coherent than normal.

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