The Arkansas Supreme Court on Thursday, April 7, unanimously upheld a lower court ruling that struck down the state’s ban on adoption and foster parenting by any person cohabiting with a sexual partner outside of marriage. The state high court said the law violates “fundamental privacy rights implicit in the Arkansas Constitution.”
Because the ruling was made on state constitutional claims, the case cannot be appealed further.
The Arkansas law, Initiated Act 1, was passed in a voter referendum in November 2008, the same month California voters passed Proposition 8 to ban same-sex marriage. Shortly thereafter, the American Civil Liberties Union (ACLU) and the ACLU of Arkansas challenged Act 1 in court.
In April 2010, a state circuit court overturned Act 1, saying it violates the Arkansas Constitution. It dismissed plaintiffs’ claims that the law also violates their rights under the United States Constitution.
The state, along with the Family Council Action Committee (FCAC)—the conservative group that led the petition drive for Act 1—appealed the case, Arkansas Dept. of Human Services and Family Council Action Committee v. Sheila Cole Et Al., to the Arkansas Supreme Court.
The state Supreme Court ruled, in the opinion written by Associate Justice Robert Brown (an appointee of then-Governor Bill Clinton), that Act 1 “directly and substantially burdens the privacy rights” of both opposite- sex and same-sex couples.
The choice faced by these couples is “dramatic,” said the court. “They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”
The court explained that state agencies would have to “police” couples to “determine whether they are sexually involved in the event those couples represent that they are celibate.” That is an intrusion “into a couple’s bedroom to enforce a sexual prohibition,” an act found unconstitutional in the 2002 Arkansas Supreme Court case Jegley v. Picado.
Because the Cole case involved a fundamental right, the court upheld the circuit court’s use of “heightened scrutiny” to evaluate it. This meant that Act 1 could only be constitutional if it used “the least restrictive method available narrowly tailored to accomplish a compelling state interest”—that interest being protecting the best interests of children.
Act 1, however, was a “categorical ban against all cohabiting couples engaged in sexual conduct,” and thus not “narrowly tailored,” said the court.
The individualized assessments of prospective foster and adoptive parents by the state are effective in determining whether applicants would be suitable, said the court—and those are the “least restrictive” means to serve the State’s interest in protecting children.
The court noted that “several of the State ’s and FCAC’s own witnesses testified that they did not believe Act 1 promoted the welfare interests of the child by its categorical ban” and that attorneys for the State and FCAC admitted during oral arguments that some cohabiting adults would be suitable foster or adoptive parents.
The court also confronted the defendants’ argument that Arkansas courts often place a restriction on cohabitation on a parent following a divorce, as a condition of child custody. The court said that in those cases, the third party cohabiting with the parent has not undergone the extensive screening of people applying to foster or adopt.
The court said that because it found Act 1 unconstitutional based on privacy claims, it would not address the issues of whether it also violated due process and equal protection under the state constitution, or whether it violated the federal constitution.
Christine Sun, lead counsel for the ACLU on the case, said in an interview Thursday that she was “ecstatic” about the ruling.
“We’re relieved for our plaintiffs. Now the child welfare professionals of Arkansas can do their job and do what’s in the best interests of children.”
Plaintiffs included a lesbian couple who adopted a special-needs child before Act 1 was passed and wants to adopt another child now; a lesbian grandmother who wants to adopt her grandchild, who is currently in state care; three teenagers in the foster care system awaiting placement; and several married opposite-sex couples whom Act 1 prevents from designating certain friends or relatives to adopt their children in the case of the parents’ deaths.
The unanimity of the court, Sun said, “indicates our case was very strong.”
She noted that the ruling “should not only have an effect in Arkansas, but on other states that may be considering similar types of bans.” While the ruling is limited to Arkansas, she hopes other states will follow the same legal analysis.
Sun also noted that the federal constitution also has “a robust right to privacy,” and “the same analysis should apply to a claim under the federal constitution.”
Utah also has a legislative ban against adoption by unmarried couples. Mississippi has a ban on adoption by same-sex couples. And while Michigan has no statutory ban, state courts have ruled that unmarried individuals may not jointly petition to adopt.
A Florida appeals court in September 2010 overturned that state’s ban on adoption by gay and lesbian individuals, and the state declined to appeal it to the state supreme court.
And Virginia Governor Robert McDonnell (R) is now considering whether to enact a proposal from former Governor Tim Kaine (D) to change state policies prohibiting adoption by unmarried (and by definition, same-sex) couples. McDonnell has indicated he is opposed to the change, concerned about the impact on faith-based adoption agencies. He must make his recommendation to the State Board of Social Services by April 16.
On March 18, U.S. Senator Kirsten Gillibrand (D-N.Y.) and U.S. Rep. Pete Stark (D-Calif.) told the Washington Blade they would be introducing bills to ban states from discriminating against LGBT people in foster placements or adoption. A similar bill, the Every Child Deserves a Family Act, was introduced by Stark last session, but died in committee.