updated 12/30/2004 1:32:51 PM ET 2004-12-30T18:32:51

A judge struck down a state ban on placing foster children in any household with a gay member, ruling that the state agency enforcing the rule had overstepped its authority by trying to regulate “public morality.”

The state promised Thursday to appeal the ruling, which came Wednesday from Judge Timothy Fox in a case brought by the Arkansas chapter of the American Civil Liberties Union.

At issue was a 1999 regulation of the Child Welfare Agency Review Board that said gays cannot become foster parents, and foster children cannot be placed in any home with a gay member under its roof.

The ACLU had argued the regulation violates the equal-protection rights of gays, but the judge’s ruling did not turn on that argument.

Instead, Fox noted that the Arkansas Legislature gave the board the power to “promote the health, safety and welfare of children,” but said the ban does not accomplish that. Rather, he said the regulation seeks to regulate “public morality” — something the board was not given the authority to do.

“The testimony and evidence overwhelmingly showed that there was no rational relationship between the ... blanket exclusion (of gays) and the health, safety and welfare of the foster children,” Fox wrote.

Rita Sklar, director of the Arkansas chapter of the ACLU, expressed satisfaction with the ruling.

“He made extensive findings of fact and he accepted everything we entered into the record refuting the state’s reasons for the regulation, including these ridiculous claims that gay people are more likely to do drugs or have diseases,” Sklar said.

Fear of disruption
The state’s lead lawyer, Kathy L. Hall, said the state had never questioned the children’s health and safety but were concerned these children particularly needed normalcy because of the disruptions in their lives.

“What we were talking about was the welfare category, and that’s the stress level, and that’s a huge category for these children,” Hall said.

She suggested the regulation could be preserved even if an appeal fails, as long as lawmakers rewrite the board’s powers “to give it the authority to regulate the health, safety, welfare and morality of children.”

Arkansas allows gays and lesbians to adopt children permanently, and its specific ban on fostering is unique.

A Florida ban on adoptions by gays and lesbians was recently upheld in a federal court and an appeal by the ACLU is pending before the Supreme Court.

Utah and Mississippi also restrict gay adoptions. Mississippi prohibits gay couples from adopting, but not gay or lesbian individuals. Utah’s ban is a state law that bars any cohabiting couples who are unmarried — gay or heterosexual — from adopting or fostering.

Fox heard extensive testimony in the Arkansas case over the past year. Several board members testified that they had personal problems with the idea of gays and lesbians engaging in sex.

Fox cited the testimony of sociologists and psychologists that gay people can be as loving and caring foster parents as heterosexuals, and that the children of gay adoptive parents can be as well-adjusted as those raised by heterosexual couples.

At trial, Hall said hearing about homosexuality or seeing it on television was different than “knowing it’s going on in the room next door.”

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