concurring. The Howard plaintiffs raised three constitutional arguments for striking down Regulation 200.3(2): violation of equal protection of the laws, violation of privacy rights, and violation of separation of powers. The trial court made abundant findings of fact supporting the lack of any legitimate government reason for Regulation 200.3(2), but chose only to strike it down because of the separation-of-powers violation. Indeed, the trial court specifically found that the regulation did not violate the equal-protection rights of the Howard plaintiffs or their privacy rights. Though I agree that the ruling on the separation-of-powers count is right, the trial court erred in my judgment by not finding equal-protection and privacy violations as well. I write, accordingly, to address those two issues.
The undeniable focus of this case for purposes of the equal-protection and privacy issues must be the best interest of the foster children. Thus, the issue must be framed in terms of whether gay and lesbian foster parents will adversely affect and hamper foster children during their period of separation from their natural parents. Reunification with the natural parents, of course, is always the ultimate goal for the foster-care program.
Prior to January 1999 when Regulation 200.3(2) was adopted by the Child Welfare Agency Review Board, gay and lesbian couples were permitted to serve as foster parents. No problems with this arrangement were reported, according to the Stipulated Facts of the parties. Single persons, whether homosexual or heterosexual, still are permitted to serve as foster parents. And there is no act or regulation prohibiting gay or lesbian couples from adopting children in Arkansas.
Screening of prospective foster parents has always been a major facet of the program to protect against abusive situations. Minimum Licensing Standards adopted by the Department of Human Services were and are in place to assure, according to the Stipulated Facts, “that only those individuals capable of providing stable, nurturing, safe, healthy homes would be approved to be foster parents.” These screening standards applied to both heterosexual and homosexual couples prior to the adoption of Regulation 200.3(2). The stated intent of the standards was to screen out those who posed a violent, sexual, or disease risk to foster children. Those standards and enforcement mechanisms are still available to eliminate any undesirable behavior by homosexual and heterosexual foster parents alike.
Despite this history, in January 1999, the Child Welfare Agency Review Board reversed course in its treatment of gay and lesbian foster parents and adopted Regulation 200.3(2), which reads:
2. No person may serve as a foster parent if any adult member of that person’s household is a homosexual. Homosexual, for purposes of this rule, shall mean any person who voluntarily and knowingly engages in or submits to any sexual contact involving the genitals of one person and the mouth or anus of another person of the same gender, and who has engaged in such activity after the foster home is approved or at a point in time that is reasonably close in time to the filing of the application to be a foster parent.
There can be no serious disagreement that Regulation 200.3(2) is directed to sexual conduct that occurs in the privacy of the bedroom. It is unspecified under the terms of Regulation 200.3(2) whether the proscribed sexual conduct is limited to the home where the foster child resides. Apparently, and the State more or less conceded this at oral argument, if the conduct occurs away from the home, it still acts to disqualify a couple as foster parents.
Regulation 200.3(2) overtly and significantly burdens the privacy rights of couples engaged in sexual conduct in the bedroom which this court has specifically declared to be impermissible as violative of equal-protection and privacy rights. See Jegley v. Picado, 349 Ark. 600, 80 S.W.3d 332 (2002). The State argues that prohibiting foster-parent status due to sexual activity in the bedroom is categorically different from making the conduct a misdemeanor which was the issue in Jegley. But is it? In both instances, gay and lesbian couples are saddled with an infirmity due to sexual orientation. To be sure, in the first instance, a crime is the burden. But in the second, gay couples are denied the freedom to act as foster parents for dependent and neglected children. And who are the ultimate losers in this? It is the foster children who will be forced to reside in youth homes because an insufficient pool of willing foster parents is available.
While not denying that Regulation 200.3(2) practices an invidious classification for equal-protection purposes on gay and lesbian couples based on sexual orientation, DHS justifies this classification by arguing that there is a legitimate government interest or rational basis for denying these couples foster-parent status. DHS’s asserted rational basis is that it is in the best interest of foster children who, it contends, will be subject to enhanced stress, ridicule, and dubious role models in a gay or lesbian foster home. And yet DHS presents nothing to support its premise. It simply argues that these foster children will be “guinea pigs,” used for experimental purposes, even while it presents nothing in the way of research or studies to support its thesis. Again, all of this is being advocated by DHS while the best empirical data available is the fact that prior to Regulation 200.3(2), gay and lesbian parents were allowed to be foster parents and there is no record of any complaints being lodged against them while serving in those roles. Moreover, based on the foster-care statistics of DHS’s Division of Children and Family Services, that division has concluded that it knows of no reason why gay and lesbian couples would be unsuitable to be foster parents.
The trial court’s findings of facts as well as the stipulation by the parties undermine any basis for the attack on bedroom privacy occasioned by Regulation 200.3(2). Indeed, the trial court found that being raised by gay and lesbian parents does not increase adjustment problems for children. There is no rational basis in the form of studies or empirical data that sustains the regulation. And the United States Supreme Court as well as this court have made it clear that mere moral disapproval of sexual activity by a group does not qualify as a legitimate reason for an attack on equal protection or privacy rights. See Lawrence v. Texas, 539 U.S. 558 (2003) (due process); Jegley v. Picado, supra (due process and equal protection). All that DHS has left propping up Regulation 200.3(2) is a moral preference by the Child Welfare Agency Review Board without anything to suggest that foster children will be jeopardized as a result.
In direct response to such government action, this court quoted the United States Supreme Court in Jegley:
. . . [I]f the constitutional conception of “equal protection of the laws” means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.
349 Ark. at 635, 80 S.W.3d at 352 (quoting Romer v. Evans, 517 U.S. 620, 634 (1996) (quoting Department of Agriculture v. Moreno, 413 U.S. 528. 534 (1973) (emphasis in original))).
Subsequently, the United States Supreme Court had this to say in Lawrence v. Texas, supra:
Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history not tradition could save a law prohibiting miscegenation from constitutional attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form “liberty” protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.
539 U.S. at 577-78 (quoting Bowers v. Hardwick, 478 U.S. 186, 216 (1986) (Stevens, J., dissenting)).
There is no question but that gay and lesbian couples have had their equal-protection and privacy rights truncated without any legitimate and rational basis in the form of foster-child protection for doing so. Indeed, in Jegley, this court held that privacy rights attending sexual conduct in the bedroom between two consenting adults was a fundamental right under the Arkansas Constitution that required strict scrutiny and a compelling state interest to justify interference with it. Nothing that the Child Welfare Agency Review Board presented to the trial court shows that it had a compelling state interest for doing what it did. Certainly, the Board’s proffered reasons surrounding best interest of the child are gossamer thin and have no foundation in objective research.
I conclude that the trial court should have struck down Regulation 200.3(2) on equal-protection and privacy grounds as well as separation of powers and erred in not doing so.
For these reasons, I concur in the result reached by the majority.