Court quashes bias 

Disputing an Arkansas Supreme Court decision that invalidated a state regulation preventing gays from being foster parents, the spokeswoman for the state Department of Health and Human Services made a curious statement:

”We have evolved so far to talk about a person’s right to be a parent or excluding a class of people. We seem to have drifted away from the focus, which is on children.”

Children are persons too, of course, and have a substantial interest in seeing that persons’ rights are protected, but it’s the second sentence that is the most interesting. Evidently, DHHS, which enforces the regulation, has not read the Court’s opinion. The crux of the ruling was that the state produced not one tiny bit of evidence to show that the regulation protected children, while there was ample evidence that the state board that adopted the regulation did so not for the good of children, but to impose board members’ own religious beliefs on others. It is the board, not the Court, that has lost its focus.

This is what the Court said, in an opinion written by Associate Justice Donald L. Corbin:

“[The] 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. … [Board members’] testimony demonstrates that the driving force behind adoption of the regulation was not to promote the health, safety and welfare of children, but rather based upon the Board’s views of morality and its bias against homosexuality.” As the legislature had not authorized the board to promote morality, the board had acted outside its areas of responsibility, the Court said, thus violating the constitutional provision of separation of powers in government.

DHHS was not alone in its inverted interpretation of the Court decision. The opinion had barely been released when politicians like Gov. Huckabee, Gunner DeLay and Asa Hutchinson began shouting about the need to “focus on the children.” Other rabble-rousers will follow. But we know the motives of these. They’re not concerned with protecting children so much as they’re concerned about getting elected.

Supreme Court judges are elected too, and the justices are to be commended for doing right when doing wrong would have been more popular. But the justices ruled on rather narrow grounds, and implied that the outcome might be different if the legislature authorized the board to promote morality, as the legislature surely will now. Associate Justice Robert L. Brown went further in a concurring opinion, saying that the regulation violated not only the separation-of powers-doctrine, but also rights to privacy and to equal protection of the laws. The Court majority did not address those issues in the decision last week. Eventually, it will have to.



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