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Getting the gays, quietly 


Our governor was in Iowa the other day trying to make presidential caucus points for 2008 and talking about the sorry state of affairs back in his province.

We tended to resent it in the early 1990s when Bill Clinton pontificated on our business while gallivanting elsewhere. We seem to react indifferently now with Mike Huckabee, either from maturation or appreciation for his absence.

Huckabee lamented in The New York Times that the Arkansas Supreme Court had struck down our administrative ban on gays serving as foster parents. Then he gave away what the state intends to do about it.

He said lawyers had decided that the best solution would be for the Legislature to enact a law saying that only legally married persons could be foster parents. That way, you see, you get the gays without having to admit you’re intending to get the gays. Maybe that would trip up the ACLU lawyers.

Such a law would sideswipe the shacked-up and the single heterosexuals. The state seems to harbor no official bigotry toward them. But including them would seem a small price to pay to make sure you covered yourselves legally on keeping needy children clear of evil conversion by dreaded homosexuals.

One thing we know: There’s no way two people of the same evident body parts can get legally married in Arkansas. By a 75 percent vote, we passed a constitutional amendment to that plain effect in 2004. If they can’t marry, then can’t take in any foster kids. Simple as that. Or is it?

The problem is that some of this gay discrimination business can get a little tricky. You can discriminate against a black person simply by looking at him. But, absent a universal bedroom monitoring system, or maybe a universal closet monitoring system, you don’t always know on gays.

Stopping a man from getting married to a man or a woman to a woman — that’s relatively easy, the rare case of gender vagueness notwithstanding. You can clearly see what it is you’re trying to prevent and you can use the clear and official powers of the state to stop it.

But you’re not necessarily keeping a foster child out of a household in which a gay resides — that having been the full intended thrust of the regulation that was struck down — by limiting foster parenting to legally married couples.

The legally married couple might have a gay child or other gay relative at home. They might not know it. Or one or the other of the legally married people might actually be gay, this having been known to be the case in the finest households.

Discrimination was so much easier when you could identify your victim on sight. Private lifestyle is harder to get your bigotry around.

Of this we can be sure: We will pass legislation effectively banning gay foster parents next year. It probably will be strategically worded not to mention gays and to restrict foster parenting only to legal married couples. It will lead to a lawsuit anyway, because nobody will be kidding anybody.

One key argument will be the state’s intent. Was the real purpose to ban gays? If so, the litigation will need to move to whether that violates gays’ rights to privacy and equal protection.

Some ACLU type ought to save as evidence this Times article over the weekend, the one in which our governor was in Iowa making his Arkansas intent clear. Of course, he won’t be governor anymore, his effective abandonment of the job having been made official.

Perhaps Arkansas can break ground in constitutional law. This could be a test case: Can a state legally discriminate against a group it doesn’t specify and can’t really fully identify?


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