The Department of Child Safety quietly reversed a policy in February that allowed married same-sex couples to jointly serve as foster parents or adopt from the more than 16,000 children under the state’s care, even though federal courts have declared Arizona’s ban on same-sex marriage is unconstitutional.
The policy change was made Feb. 4, a day after a federal lawsuit was filed alleging Arizona has failed to provide enough foster homes to children. A week later, Gov. Doug Ducey told supporters of Center for Arizona Policy, the Christian advocacy group that authored the state’s gay marriage ban, that they needed to step up and reduce the number of children who are wards of the state.
“I’m asking specifically for your help as an organization, the faith-based community, to re-engage in this issue of child safety, whether it’s foster parents, whether it’s adoption, whether it’s as court-appointed special advocates for these children,” he said in a Feb. 11 speech at Wesley Bolin Plaza, adding later that reducing the number of children waiting for foster parents is a priority of his administration.
DCS had been allowing same-sex married couples to jointly house foster children and jointly adopt since October, when a federal judge invalidated Arizona’s ban on same-sex marriages.
At the direction of Attorney General Mark Brnovich, who took office in January, the department reversed course in February and now issues individual licenses to same-sex married couples.
The reversal violated the equal protection aspect of the 14th Amendment, according to the American Civil Liberties Union of Arizona.
ACLU of Arizona Legal Director Victoria Lopez threatened in February to sue the department if it did not once again allow married same-sex couples to jointly adopt and provide foster homes for children.
“In light of the 9th Circuit and federal district court decisions interpreting Arizona law, same-sex married couples should be treated the same as opposite-sex married couples for the purposes of becoming foster and adoptive parents,” Lopez wrote in a Feb. 24 letter to Brnovich and DCS Director Greg McKay.
The ACLU has yet to file suit against DCS.
In announcing the policy change to DCS employees, Arianna Robinson, a program administrator for the department’s Office of Licensing and Regulation, wrote in an email that, in light of the U.S. Supreme Court’s decision in January to review a series of same-sex marriage cases in the 6th U.S. Circuit, the agency should stop issuing licenses to same-sex married couples.
“Effective immediately, and pending the Supreme Court’s ruling, the Department will revert to its previous interpretation of state law, rule and policy,” Robinson wrote on Feb. 4.
The Supreme Court will hear arguments on the same-sex marriage cases April 28.
Former DCS director Charles Flanagan, who was fired by Ducey on Feb. 10, said the direction to change policy and cease issuing joint licenses came from the attorney general.
DCS spokesman Doug Nick acknowledged that, in February, the department “stopped issuing joint foster care licenses to same-sex married couples at the direction of the Attorney General’s Office.”
He added that “DCS will work with the Attorney General’s Office to review this policy.”
In her letter to Brnovich and McKay, Lopez wrote that the department is effectively breaking the law on a chance that a Supreme Court decision may change it.
U.S. District Court Judge John Sedwick declared Arizona’s ban on same-sex marriage unconstitutional on Oct. 17. His ruling followed a similar one earlier in the month by the 9th U.S. Circuit Court of Appeals voiding similar laws in Nevada and Idaho.
Arizona’s attorney general at the time, Tom Horne, decided against appealing Sedwick’s ruling.
“That a law may change in the future does not release DCS of its duty to follow current law,” Lopez wrote. “Marriage equality is the law in Arizona and state agencies must uphold and follow the law.”
Adoption attorney Claudia Work, an advocate for gay rights issues, said there’s “absolutely no legal justification” for DCS to have ceased issuing joint licenses to same-sex married couples.
“They are simply just trying to stall,” she said.
The Supreme Court’s review of cases from the 6th U.S. Circuit has no bearing on Arizona’s law, said Work, who cited a letter from Arizona Solicitor General Robert Ellman in November regarding the possibility that the Supreme Court would seek to resolve a split in circuit court opinions on same-sex marriage laws.
“Unless and until the Supreme Court rules in that fashion, Arizona will not seek to dissolve the district court’s injunction, will continue issuing marriage licenses to same-sex couples, and will continue to recognize the validity of same-sex marriages,” Ellman wrote.
Ryan Anderson, a spokesman for Brnovich, said the attorney general’s staff is taking a different approach than their predecessor in light of the Supreme Court’s decision to review same-sex marriage cases, and “advised DCS we thought it best they revisit the issue after the Supreme Court ruled.”
“I realize that we’re talking about marriage here, which is the law of the land, but that is different than adoption in the statutes,” Anderson said. “[In] Arizona, we currently permit same-sex couples to marry, but I think it’s not yet clear if that rationale advances, whether it applies to adoption and licensing statutes.”
The policy reversal effectively limits the number of homes with loving, two-parent families the more than 16,000 foster children in Arizona may be placed in, Lopez wrote.
“Against this reality for so many Arizona children, it is unconscionable that DCS has chosen to implement policies that discriminate against loving families willing to open their homes to children in need,” Lopez wrote. “DCS policies will only further harm children the state claims it wants to protect.”