http://arkansasnews.com/2011/04/07/state-supreme-court-strikes-down-adoption-ban/
State Supreme Court strikes down adoption ban
Posted on 07 April 2011
By John Lyon
Arkansas News Bureau
LITTLE ROCK — A state law banning unmarried, cohabiting couples from adopting children or becoming foster parents is unconstitutional, the Arkansas Supreme Court ruled unanimously today.
The high court upheld a Pulaski County circuit judge’s ruling that the law unconstitutionally burdens fundamental privacy rights.
Rita Sklar, executive director of the ACLU of Arkansas, said the ruling is a relief to more than 1,600 children in the state who are in need of a permanent family.
“This ban wouldn’t even allow a relative — gay or straight — to foster or adopt a child with whom they had a close relationship, so long as that relative was unmarried and living with a partner,” Sklar said. “The court clearly saw that this ban violated the constitutional rights of our clients and thousands of other Arkansans.”
Jerry Cox, president of the Christian conservative Family Council, said the decision “is the worst ever handed down by the Arkansas Supreme Court.”
“This is a classic example of judicial tyranny,” Cox said. “Unfortunately (Thursday’s) ruling puts the rights of adults ahead of the rights of children and their welfare.”
Cox said his group is considering asking voters to adopt the measure as a constitutional amendment.
The law, known as Act 1, was proposed to voters as a ballot initiative by the Family Council in November 2008 and passed with 57 percent of the vote. The Family Council proposed the initiative after Arkansas’ highest court ruled that a state policy against allowing same-sex couples to adopt or foster children was unconstitutional.
In December 2008, the American Civil Liberties Union filed a lawsuit challenging the law on behalf of a group of Arkansas residents. The group included unmarried adults who wanted to adopt or foster children, parents who wanted to choose who would adopt their children in the event of their incapacitation or death, and the children of those parents.
The Family Council later intervened as an additional party in the suit.
In an April 2010 ruling, Pulaski County Circuit Judge Chris Piazza said the law significantly burdens a fundamental privacy right, and therefore to pass constitutional muster it must be narrowly tailored to accomplish a compelling state interest and must do so by the least restrictive method available. The law does not meet that standard and instead cast “an unreasonably broad net,” he ruled.
The state and the Family Council argued on appeal that adopting or fostering children is a privilege bestowed by state law and not a fundamental right.
The Supreme Court said the problem with the argument is that the right to engage in private, consensual sexual activity, free from investigation by the state, is a fundamental right, and under Act 1 that right is conditioned on foregoing the privilege of adopting or fostering children.
Cohabiting sexual partners “must choose 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,” Justice Robert Brown wrote in the opinion.
The state and the Family Council also argued that Act 1 is no more an invasion of privacy rights than the non-cohabitation agreements that sometimes are included in court orders in child custody cases.
The Supreme Court said non-cohabitation orders are different because they are based on a case-by-case analysis in which the courts and state agencies look at many different factors and make a determination of what is best for the child.
“Act 1’s blanket ban provides for no such individualized consideration or case-by-case analysis … and makes the assumption that in all cases where adoption or foster care is the issue it is always against the best interest of the child to be placed in a home where an individual is cohabiting with a sexual partner outside of marriage,” the court said in the opinion.
The high court also agreed with Piazza that the law is not narrowly tailored to accomplish a compelling state interest and does not do so by the least restrictive method available.
“We conclude that the individualized assessments by DHS and our trial courts are effective in addressing issues such as relationship instability, abuse, lack of social support and other factors that could potentially create a risk to the child or otherwise render the applicant unsuitable to be a foster or adoptive parent,” the court said in the opinion.
“By imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the state and our courts to conduct these individualized assessments on the individuals, many of whom could qualify and be entirely suitable foster or adoptive parents.”
Gov. Mike Beebe, who opposed Act 1 when it was on the ballot, said Thursday that DHS would continue to carefully consider each foster care and adoption application with the best interest of the child its foremost concern.
“By expanding the pool of potential applicants, (Thursday’s) Supreme Court decision will create more opportunities to match children with loving and supportive homes,” the governor said.
Aaron Sadler, a spokesman for Attorney General Dustin McDaniel, said, “We defended the act, and the court has spoken. Now it will be up to DHS to promulgate rules in accordance with the decision.”
Writing new rules may take a few months, but during the process DHS can go ahead and place children in homes that would not have been able to take children under Act 1, agency spokeswoman Julie Munsell said.
Munsell said she is aware of just one case before DHS that has been affected by Act 1. She said that following Piazza’s ruling, the couple involved in that case was allowed to proceed with the application process with the understanding that, even if the application was approved, no placement could happen until the lawsuit was resolved.
Wendy Rickman, one of the plaintiffs in the lawsuit who previously adopted a special-needs foster child with her partner of 11 years, Stephanie Huffman, said in a statement, “We look forward to the opportunity to go through the adoption process once more and to welcome another child into our family.”
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Reporter Rob Moritz contributed to this report
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