Board says it’ll let Legislature address ruling
Posted on Thursday, September 7, 2006
MOUNT MAGAZINE STATE PARK — Members of the state Child Welfare Agency Licensing Review Board said Wednesday that they do not plan to appeal a June decision by the Arkansas Supreme Court striking down a regulation the board established in 1999 banning gays and individuals who resided with gays from becoming foster parents.
The board, which is holding a three-day retreat at Mount Magazine State Park, plans to formally vote on the decision not to appeal during a board meeting today.
“I would say at this point, I’d just like to let the Legislature work on this one,” said board chairman James Balcom.
Kathy L. Hall, an attorney with the Department of Health and Human Services’ Office of Chief Counsel, told the board that it had until Sept. 29 to file a petition for a writ of certiorari with the U. S. Supreme Court.
The state Supreme Court and Pulaski County Circuit Judge Timothy Fox ruled that the Legislature did not give the board authority to establish such a ban, which Fox and the justices said amounted to regulating “public morality.”
Despite the Supreme Court’s ruling, cohabitating unmarried couples — gay or straight — are ineligible from becoming foster parents.
The Child Welfare Agency Licensing Review Board replaced the previous ban on gay foster parents with a rule preventing unmarried couples from becoming foster parents. It took effect Feb. 17, 2005, after the rule barring gay foster parents was struck down by the 6 th Judicial District in 2004. That policy banning unmarried couples remains in effect.
Hall said it was unlikely the U. S. Supreme Court would choose to hear the case since the appeal would involve a state issue of the board’s authority — not who can and cannot be foster parents.
“This is not a federal issue. This is state legislation.... This is not necessarily an issue that the United States Supreme Court would hear because it’s got its basis in state law.
“ So while I think that you all need to know that that option is out there for filing a petition... the likelihood of the Supreme Court hearing it is slim,” Hall said.
Hall added that legislative action would likely deliver a quicker result than appealing to the U. S. Supreme Court.
Following the state Supreme Court decision in June, Gov. Mike Huckabee said he expected state lawmakers to consider legislation in response to the ruling in 2007.
Sen. Jack Critcher, D-Batesville, the Senate pro tempore designate for the 2007 legislative session, and Rep Benny Petrus, D-Stuttgart, the speaker of the House-designate for the session, said they were willing to consider such a legislative response.
In 1999, 2001 and 2005, lawmakers tried but failed to pass bills that would have prohibited gays from being foster parents. In 2005, Rep. Bob Adams, DSheridan, introduced House Bill 1119 of 2005 in response to Fox’s 2004 ruling.
That bill originally banned gays from being foster parents but was later amended to prohibit all unmarried couples. It passed in the House, but died in a Senate committee.
Both Mike Beebe, the Democratic nominee for governor, and Asa Hutchinson, the Republican nominee for governor, said that they were opposed to letting gays be foster parents.
Beebe said the state should enact a law banning foster parenting by homosexuals, making sure that it’s a constitutional law.
Hutchinson said he also supported a law prohibiting gays from being foster parents.
Lieutenant governor candidates Republican Jim Holt and Democrat Bill Halter said they supported a legislative ban, but Halter said his support would only come after a thorough review and such legislation is found to be constitutional and in the best interests of foster children.
Attorney General candidates Republican Gunner DeLay and Democrat Dustin McDaniel said they also supported legislative action.
Hall said the case, which began in 1999, has cost the state “many thousands of dollars,” but did not know an exact figure. The American Civil Liberties Union, which represented the plaintiffs, will likely file a motion for reimbursement of attorneys’ fees after Sept. 29 if the board does not appeal to the U. S. Supreme Court, Hall said.
“While the case is going to be effectively closed, the issue probably will not be, as far as who can foster parent and who can’t,” Hall said. “And I think that for as long as the state is responsible for the foster care system, there’s always going to be issues that come up with what’s appropriate and what’s not.”
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