Lambda Legal's Letter of Opposition to Talton Amendment to Texas S.B. 6

Foster Care Project

Dennis Coleman
Regional Director

April 27, 2005


The Honorable Jane Nelson
Texas Senate
P.O. Box 12068
Austin, TX 78711-2068

    Re: OPPOSITION to Talton Amendment to S.B. 6

Dear Senator Nelson,

Lambda Legal Defense and Education Fund (“Lambda Legal”) is the nation’s oldest and largest civil rights organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, transgender people, and those with HIV, through impact litigation, education, and public policy work. Lambda Legal has regional offices throughout the United States, including in Dallas, Texas. We have litigated several important civil rights matters in Texas, including overturning in the United States Supreme Court Texas’ “Homosexual Conduct” law, which unconstitutionally criminalized hundreds of thousands of gay and lesbian Texans. Lawrence v. Texas¸539 U.S. 558 (2003). Lambda Legal’s Foster Care Project has conducted comprehensive assessments nationally of the harms to foster youth due to the pervasive ignorance about and discrimination against both gay youth in care and gay adults serving as foster parents. The Project has been actively involved in Texas, presenting at child welfare conferences and working with the state’s network of advocates dedicated to eliminating discrimination against lesbian, gay and bisexual people in the Texas foster care system.

On behalf of our members and supporters in Texas, Lambda Legal strongly opposes the proposed amendment to S.B. 6 which states, in part, that the Department of Family and Protective Services shall not place or “allow a child to remain in foster care” with a foster parent who is “homosexual or bisexual” (the “Talton Amendment”). The Talton Amendment is discriminatory, unconstitutional, and contrary to the best interests of children in foster care. Under long-settled child welfare policy, Texas evaluates foster parents as individuals on a case-by-case basis. Consequently, our state’s caseworkers are well equipped to determine who should and who should not serve as foster parents for particular children. The Talton Amendment would ban countless qualified foster parents only because they are gay, lesbian or bisexual, including many who have already proven themselves as foster parents. It would wrench children placed with loving, capable foster parents from the stable homes in which they are thriving, and would decrease the already woefully short supply of foster families for the most vulnerable of Texas’ children.

Passage of the Talton Amendment would make Texas the only state in the nation with a legislative ban on foster parenting by gay, lesbian and bisexual adults. Indeed, just four months ago, a state court in Arkansas struck down a regulatory provision similar to the Talton Amendment. Howard v. Child Welfare Agency Review Board, Case No. CV 1999-9881 (Ark. Cir. Ct., 6th Div., December 29, 2004). The Howard lawsuit challenged a 1999 Arkansas Child Welfare Agency Review Board licensing standard providing that “no person may serve as a foster parent if any adult member of that person’s household is a homosexual.” Following nearly six years of litigation and extensive expert testimony, the Arkansas court concluded “the evidence overwhelmingly showed that there was no rational relationship between [the blanket exclusion of gay and lesbian foster parents] and the health, safety, and welfare of foster children.” The court further noted that “[t]here was one point on which every single expert that testified was in agreement ... That point was that the number one rule with respect to foster children is that the needs of each and every foster child should be individually examined and a foster home placement made based upon that child’s individual needs.” Id.

The Texas Legislature should heed the lessons of the Howard litigation. The Talton Amendment is not based on sound child welfare policy, but upon defamatory falsehoods about and a desire to stigmatize gay men, lesbians and bisexuals. It prohibits placements based on the individual needs of children by substituting a blanket rule banning an entire category of qualified foster parents. It would even remove foster children from foster homes in which they have been thriving and throw them back into a system already suffering from a severe shortage of foster care placements. Representative Talton, sponsor of the Amendment, has not been able to provide a single example of a child being harmed by being placed with a gay, lesbian or bisexual foster parent, nor any credible evidence that the best interests of foster children will be served by removing them from the care of loving, stable foster parents.

Indeed, the leading child welfare agencies in the United States contradict Rep. Talton’s position. The North American Council on Adoptable Children has stated that “[e]veryone with the potential to successfully parent a child in foster care is entitled to fair and equal consideration regardless of sexual orientation.” Policy Statement, March 14, 1998. The Child Welfare League of America maintains that “[a]ll applicants [to foster or adopt] should be fairly assessed on their abilities to successfully parent a child needing family membership and not on . . . sexual preference.” CWLA’s Standards Regarding Sexual Orientation of Applicants, 1998. The American Psychological Association similarly has stated that “[t]here is no empirical support for any presumption that a gay or lesbian parent’s sexual orientation . . . is or will be harmful to children.” Amicus brief in Boswell v. Boswell, Case No. C-94 16022 DV, Md. Ct. App. (September 1998), available at <http://www.apa.org/psyclaw/boswellbrief.html>, see also, Boswell v. Boswell¸721 A.2d 662 (Md. 1998). The Talton Amendment will do nothing but harm some of the most vulnerable children in our state – making them the pawns of an ideologically driven social crusade – while stigmatizing competent, caring foster parents. In short, the proposed amendment is not even rationally related to any legitimate state interest in the well being of foster children.

The United States Supreme Court has held that a law based solely on animus or moral disapproval towards gay men and lesbians lacks even a legitimate state purpose and is unconstitutional. Romer v. Evans, 517 U.S. 620, 635-36 (1996) (“if 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 can not constitute a legitimate governmental interest.”) (emphasis in original ); Lawrence v. Texas, 539 U.S. at 571, 578 (the desire to “condemn homosexual conduct as immoral” is “no[t a] legitimate state interest.”). The proof of such illegitimate government purpose behind the Talton Amendment could not be clearer. Two years ago Rep. Talton testified in support of his failed House Bill 1911, which also would have banned gay Texans from serving as foster parents. Rep. Talton stated explicitly that he valued his opposition to gay and lesbian people “above the value of foster care.” The Wisdom of Deacon Talton, Austin Chronicle, Vol. 22, No. 35, May 2, 2003. Invoking the most pernicious of false, archaic stereotypes about gay people, he compared gay men and lesbians who selflessly serve as foster parents to child abusers and pedophiles. Id. Rep. Talton claimed, without a shred of evidence and contrary to the settled expert consensus, that children would be better off in orphanages than with gay and lesbian foster parents. Id. Finally, he said of gay men and lesbians who provide good loving homes for desperately needy children, “I don’t look at those that may be homosexuals as parents as such.” Id.1

Rep. Talton’s own words make plain that the Talton Amendment is based on nothing more than ignorance and animus towards gay, lesbian and bisexual people, which are always illegitimate grounds for law-making. Accordingly, passage of the Talton Amendment would violate constitutional rights and inevitably invite a legal challenge, while enacting terribly misguided, harmful child welfare policy.

Not only would the Talton Amendment violate the constitutional rights of gay, lesbian and bisexual foster parents, it also would violate the rights and best interests of Texas children in foster care. Children wrested from nurturing foster care placements because their foster parents have been banned under an illegitimate state law could claim against a state system that has put their best interests aside. The Texas foster care system is already in a state of crisis and can ill afford to undermine further its ability to find and sustain appropriate placements for children in care.

This has been recently demonstrated by the federal government’s unequivocally negative findings in its latest audit. As Texas already is facing the potential loss of many millions of dollars in federal funding as a result of failing this audit, the Talton Amendment would further weaken the state’s overburdened foster care system in significant ways. First, it fails to address the serious defects identified by the audit of the system’s current ability to provide permanency for children in foster care. Given the existing lack of permanent homes for Texas’ foster children, this measure would senselessly diminish the pool of potential foster care resources still further. Second, the federal audit showed that Texas is below the national standard for measures related to children’s placement stability while in foster care. Changing children’s foster placements simply because their foster parents are gay, lesbian or bisexual would subject this vulnerable population of children to unwarranted increased instability. Finally, the audit includes an explicit charge that the State of Texas must improve its ability to recruit more foster and adoptive families. Enacting the Talton Amendment would move Texas in the exact opposite direction. Important efforts now underway to recruit loving, competent foster and adoptive families in Texas would most certainly be substantially weakened, while the state places itself on record as favoring anti-gay posturing over the needs of children.

Texas caseworkers carry more than triple the federal standards of 12-18 cases per caseworker. To expect these same caseworkers to screen and monitor all current and prospective foster parents to determine if they are gay, lesbian or bisexual would place considerable additional financial strain on the system, which inevitably would result in further lowering the current standard of care. At a time when the citizens of Texas are calling for a complete overhaul of the child welfare system in light of the federal audit and these children’s compelling, actual needs, the Talton Amendment would gut S.B. 6 and render it merely a counterproductive ideological tool. Given the significant amount of federal funding at stake and the dire need to make improvements to the system of care for the state’s abused and neglected children, the Talton Amendment is a misguided step away from the critical and timely task of improving the state’s foster care system.

For all of the foregoing reasons, Lambda Legal strongly urges that the unconstitutional Talton Amendment be stripped from S.B. 6. Thank you for your consideration of this matter of vital importance to children and families throughout Texas.

        Very truly yours,

        /s/ Dennis Coleman
        Dennis Coleman
        REGIONAL DIRECTOR
        LAMBDA LEGAL DEFENSE AND EDUCATION FUND

        /s/ Rudy Estrada
        Rudy Estrada
        STAFF ATTORNEY
        LAMBDA LEGAL FOSTER CARE PROJECT

1 Rep. Talton also contends that children placed with lesbian or gay foster parents would be harmed by being influenced to become gay themselves. This is simply not true. The solid, long-standing professional consensus is that individual sexual orientation does not alter with the environment in which an individual may be placed. See generally, Amicus Brief of American Psychological Association in Dale v. Boy Scouts of America, Case No. 99-699, available at <http://www.apa.org/psyclaw/boyscout.html>, stating “[r]esearch into the three aspects of sexual identity – gender identity, gender role, and sexual orientation – consistently demonstrates no differences between children of gay or lesbian parents and children of heterosexual parents.”