Judge OKs gay foster
parent
Ruling in Jackson
County calls the state’s denial of a license
arbitrary and
unreasonable
By JOE LAMBE and JOHN
SHULTZ, The Kansas City Star, from the Web, February 18, 2006
In the first such case in Missouri, a
Jackson County judge ruled Friday that the state could not deny a lesbian a
foster parent license.
There was no dispute that Lisa Johnston was well qualified, but the state
contended she lacked “reputable character” because her sexual relationship with
another woman broke state law. So the state denied the license.
But Missouri’s law against same-sex sodomy between consenting adults is
unenforceable, Jackson County Judge Sandra Midkiff ruled Friday. She cited
a landmark 2003 U.S. Supreme Court gay-rights decision as the reason.
Since Johnston is breaking no law, there is no evidence of bad character, and
the state’s decision to deny her a license is arbitrary and unreasonable,
Midkiff ruled.
The case is one of many in the nation’s culture wars being shaped by the 2003
U.S. Supreme Court ruling, which overturned a Texas law against same-sex sodomy.
Missouri and Kansas are among about a dozen states that still have such laws.
If the Friday ruling were to stand, it would end an unwritten Missouri policy of
denying foster licenses to gay people. The state plans to appeal, however,
a spokesman for Attorney General Jay Nixon said Friday.
Johnston, who wanted to raise a child with partner Dawn Roginski, applied for a
foster parent license three years ago and sued after it was denied.
“I’m overwhelmed with joy,” Johnston said Friday. “I feel like we were
heard.”
Later she and Roginski issued a joint statement praising the judge for seeing
that such bans hurt children. “This is a victory for all the children in
the Missouri foster care system,” they said.
In a statement released Friday evening, a Department of Social Services
spokeswoman said the department was “disappointed by the decision … and its
implications for the state of Missouri.”
The department plans to ask the court to stay its decision while the appeal
plays out, Deborah Scott said.
American Civil Liberties Union lawyer Kenneth Choe with the Lesbian and Gay
Rights Project in New York said the ruling was a victory on every point.
He added that it came in one of two states that still forbid gay foster parents.
About a year ago, the ACLU also won a lower court ruling against the practice in
Arkansas. That case is now pending before the Arkansas Supreme Court, he
said.
Midkiff noted that the state presented no evidence supporting those arguments.
She found them arbitrary.
Nixon’s staff also argued: “Missouri courts have consistently found that
living with an openly homosexual parent places a child in an immoral environment
that will impede a child’s moral development.”
Midkiff noted a 1998 Missouri Supreme Court ruling that said a homosexual parent
is not automatically unfit for custody of a child.
As for character and qualifications, Midkiff listed accomplishments:
Johnston has a bachelor’s degree in human development and family services and
has worked with children for years; Roginski has degrees in psychology,
counseling and divinity and works at a treatment center for at-risk children.
And Midkiff cited the U.S. Supreme Court ruling that moral condemnation was not
grounds to criminalize homosexual conduct or intrude into private life.
The high court ruling carved out a right for private, consensual sex acts
between adults, but how far that extends is still unclear.
Quoting from a previous opinion, the Supreme Court majority said: “Our
obligation is to define the liberty of all, not to mandate our own moral code.”
In a thundering dissent, Justice Antonin Scalia said that by abandoning
morality, the ruling opened up challenges to laws on such things as same-sex
marriage, prostitution, bestiality and obscenity.
“Many Americans do not want persons who openly engage in homosexual conduct as
partners in their businesses, as scoutmasters for their children, as teachers in
their children’s schools,” he wrote.
Lower court rulings have been mixed since the decision, with many judges
interpreting it conservatively and limiting its range.
Courts in recent Florida and New Hampshire cases have upheld the rights of those
states to prohibit gay adoption.
In Kansas, gay couples can be foster parents if they pass evaluation, officials
said, but they cannot adopt, because they are not recognized as married and only
married couples can adopt.
Lawyers said the 2003 Texas ruling would probably work like previous big
decisions such as Brown v. Board of Education, in which high court
rulings a few years later clarified how far it went.
So far the greatest gay rights victory since the Texas case came last year in a
Kansas Supreme Court ruling. Citing the Texas ruling, it overturned a
state law that punished statutory rapes by underage gays far more harshly than
those by heterosexuals.
The Kansas Court ordered Matthew Limon released after he had served five years
of a 17-year sentence. If the act had been heterosexual, the maximum
sentence would have been 15 months.
In another case involving the Supreme Court ruling, a divided federal appeals
court denied an attempt to use it to overturn an Alabama law that forbids the
sale of sex toys.
Other cases have challenged the military’s “don’t ask, don’t tell” policy and
its sodomy statute. How they will turn out is “a bit of an open question,”
said Steve Ralls, communications director for the Servicemembers Legal Defense
Network, a gay rights group. (Abridged)
First glance
■ In a statement released Friday evening, a spokeswoman for the Department of
Social Services said the department was “disappointed by the decision … and its
implications for the state of Missouri.”
The Star’s Laura Bauer contributed to this report. To
reach John Shultz, call (816) 234-4427 or send e-mail to
jshultz@kcstar.com. To reach Joe
Lambe, call (816) 234-4314 or send e-mail to
jlambe@kcstar.com.
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