January 6, 2009
W.H., an infant, was reportedly removed from her parents by Arkansas's Department of Human Services after she was taken to a hospital with injuries that strongly suggested abuse. Fortunately for W.H., her grandmother, a registered nurse, was eager to take her in. But there was a hitch. Her grandmother lives with another woman, and a ballot initiative recently passed in Arkansas makes it illegal for gay and unmarried heterosexual couples to adopt or become foster parents. Arkansas courts should strike down this offensive new law.
Arkansas has a long tradition of allowing child welfare professionals to decide who should become a foster or adoptive parent. Anti-gay forces, however, have campaigned to disqualify gay people. In 2006, the Arkansas Supreme Court struck down a regulation barring gay people from becoming foster parents.
Last year anti-gay activists promoted Act 1, a ballot referendum that broadened the ban to include unmarried heterosexual couples. In November, it passed with about 57 percent of the vote. The A.C.L.U. of Arkansas is challenging the new law, on behalf of a group of would-be parents and children, contending that it discriminates against gay and unmarried straight couples and that it makes it impossible to place children in the best homes.
The new law is undeniably discriminatory. Under Arkansas law, people convicted of major crimes, including contributing to the delinquency of a minor, remain eligible to adopt children or become foster parents. Single people who have no partner — or who have a large number of casual sex partners — are also eligible. Anyone who is in a committed relationship, gay or straight, but is not married is automatically barred.
The new law also interferes with the Department of Human Services' ability to do its job of making individualized assessments of prospective parents and placing children in the homes that are best able to meet their needs. As the W.H. case suggests, an unmarried couple could be the most qualified parents. And because of the shortage of foster parents, the ban is very likely to make children wait substantially longer for a loving home.
Arkansas's new law was a victory for the forces of bigotry and a major setback for the guiding principle of the law in adoption and foster care: the best interests of the child.
