Liberal or Conservative?

In State ex rel Kutil v. Blake, No. 34618 (June 5, 2009), the Supreme Court of Appeals reversed a ruling removing a child from the home of a same sex foster couple. This morning's Gazette headline states: "State Supreme Court rules in favor of same-sex foster parents." http://www.wvgazette.com/News/200906050247. The headline should have read "State Supreme Court rules in favor of foster child." By tomorrow morning, if not already today, we will have an outcry about activist liberal judges destroying the core of our society.

Before anyone gets on the soapbox, here is the opinion:
http://www.state.wv.us/wvsca/docs/Spring09/34618.htm. Read the opinion.

If you read the opinion carefully, instead of just looking at the result, it shows the Court follows long established precedent by requiring that in placing children, the best interest of the child must the basis for decisions affecting the placement of children in foster homes. The Court found the child was removed on motion of a guardian ad litem from a foster home described as "comfortable and physically safe for the infant respondent," because "the best interest of the child is not to be raised, short term or long term, in a homosexual environment and that the same is detrimental to the child's overall welfare and well-being.”

Examining the relevant statute, West Virginia Code § 48-22-201 (2001), the Court found no prohibition on foster placement or adoption by same sex couples and no legislative preference for married couples. The Court declined to create language in a statute where no such language existed. One basis for removing the child was overcrowding, but the Court found there was no analysis by the DHHR about which child to remove from the home consistent the best interest of the child, because the only reason for removing this kid was the issue of a same sex foster couple. By oral argument, the issue of overcrowding, due to temporary placements, was moot. The Court also found that even though the foster parents expressed a desire for adoption, that issue was not before the court - only the issue of short term placement.

So, liberal or conservative? First, I don't like these labels, because the truth is that people like to put labels on decisions not because of how the court addresses issues within its constitutional power, but because they don't agree with the result.

But, if this is the debate, this decision is conservative. The Court found no statutory prohibition on same sex foster parents or adoptive parents, so it didn't create any new law on that issue. Indeed, no one said all the other kids should have been taken from the home which was described by all as a good home. The Court required the best interest of the child to be the "polar star" or driving force. With no analysis by anyone, and no evidence the foster home was bad, how is it "liberal" or "activist" to require evidence and to require circuit courts to follow precedent? For my two cents, the Court followed established law, read exactly what our statutes say and did not create new law, and focused on the best interest of the child. I think well meaning, honest people can disagree on a lot of things, but not putting the best interest of kids first.