Arkansas Adoption, Foster Care Ban Falls

BY ARTHUR S. LEONARD | The Arkansas Supreme Court has unanimously ruled that a referendum-enacted statute prohibiting adoption by cohabiting adults violates the State’s Constitution’s implicit protection of individual privacy. The April 7 ruling affirmed a decision by Pulaski County Circuit Court Judge Christopher C. Piazza.

The measure enacted by voters in November 2008 was phrased to obscure the goal of prohibiting gay adoptions, but given an ongoing history of trying to achieve that in Arkansas, there can be little doubt that disapproval of gay people raising kids was a leading motivation among religious groups that poured money into the initiative effort.

Unanimous State Supreme Court ruling finds it is overbroad in disqualifying unmarried couples

The American Civil Liberties Union brought suit on behalf of a group of unmarried couples, both same-sex and different-sex, lodging claims under both the federal and state constitutions. The assertion that stuck, providing the basis for the ruling, was premised on a 2002 Arkansas Supreme Court ruling finding that the state’s sodomy law violated a right of privacy implicit in the State Constitution.

Like the US Constitution, Arkansas’ does not mention privacy, but as the 2002 court ruling noted, it does explicitly “guarantee citizens certain inherent and inalienable rights, including the enjoyment of life and liberty and the pursuit of happiness,” and also contains a specific right of citizens to be “secure in their homes.” The Arkansas Legislature has enacted numerous laws over the years mentioning privacy.

In the sodomy ruling, the State Supreme Court found that “Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution.”

In the adoption challenge, plaintiffs argued that their right to privacy was unconstitutionally infringed by making foster or adoptive parent eligibility conditional on refraining from relationships that fell within the protected sphere of privacy rights. Since privacy was a “fundamental right,” they asserted, the state would have to show a compelling public interest in burdening it.

Arkansas’ response was that there is no fundamental right to be a foster or adoptive parent; rather, it is a privilege the state can limit as long as it has a rational basis for doing so. That reason, the state argued, was the best interest of children in need of adoption or foster placement to be in households headed by legally married parents. The state pointed to a 2005 State Supreme Court ruling that found that extramarital cohabitation with children present “has never been condoned in Arkansas, is contrary to the public policy of promoting a stable environment, and may of itself constitute a material change in circumstances warranting a change of custody.”

The Supreme Court rejected the state’s arguments, finding that the statute imposed a “dramatic” choice on certain unwed couples ––“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.” Associate Justice Robert L. Brown, writing for the high court, noted the US Supreme Court has “rejected the concept that constitutional rights turn on whether a government benefit is characterized as a ‘right’ or a ‘privilege.’” The statute, the court held, “thwarts the exercise of a fundamental right to sexual intimacy in the home free from government intrusion under the Arkansas Constitution.”

The State Supreme Court distinguished this case from the 2005 custody ruling that weighed unmarried cohabitation as a negative factor by pointing out that custody orders are based on multi-factor determinations made “on a case-by-case basis.” In contrast, Brown wrote, the adoption statute’s “blanket ban provides for no such individualized consideration or case-by-case analysis in adoption or foster-care cases and makes the bald 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 marriage.”

The standard the court applied in scrutinizing the law was whether it served “a compelling state interest” and applied “the least restrictive method” of achieving that interest. The trial judge had concluded the statute was invalid “because it casts an unreasonably broad net over more people than is needed to serve the State’s compelling interest.” The high court affirmed that conclusion, finding that an “individualized home assessment” carried out by the Children and Family Services Department allowed for “a thorough and effective means to screen out unsuitable applicants.” This would be “the least restrictive means for addressing the compelling state interest of protecting the welfare, safety, and best interest of Arkansas’s children,” the court concluded.

The trial judge had dismissed the plaintiffs’ other federal and state constitutional theories, finding it unnecessary to decide them once it had determined the statute was unconstitutional. The State Supreme Court agreed with that approach, declining to “issue an advisory opinion.”