An Arkansas voter-passed law that limits foster care and adoption to married couples and single persons violates people’s right to privacy and is unconstitutional, the state’s high court said.
Act 1 unfairly bans an entire category of adults — those who live together in a sexual relationship outside of marriage — from being caregivers for children in state care, Arkansas Supreme Court Associate Justice Robert L. Brown wrote in the unanimous opinion.
“We hold that a fundamental right to privacy is at issue in this case and that, under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes,” he wrote.
“We further hold that this right is jeopardized by Act 1, which precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care,” said the ruling, which affirmed a lower court ruling.
The decision was hailed by gay rights and civil liberties groups.
“The Arkansas Supreme Court has removed a discriminatory barrier for loving gay and lesbian couples who, child welfare experts agree, are equally able parents,” said Joe Solmonese, president of the Human Rights Campaign.
Act 1 “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. The court clearly saw that this ban violated the constitutional rights of our clients and thousands of other Arkansans,” said Rita Sklar, executive director of the American Civil Liberties Union of Arkansas.
“We look forward to the opportunity to go through the adoption process once more and to welcome another child into our family,” said plaintiff Wendy Rickman, who, along with her partner of 11 years, Stephanie Huffman, was represented by the ACLU.
Alliance Defense Fund lawyer Byron Babione, who defended Act 1 on behalf of its sponsor Family Council Action Committee, said the high court’s ruling “tragically places more importance on the sexual interests of adults than on protecting children.”
The people who voted for Act 1 “cast their ballots to ensure that children wouldn’t be deprived of the best possible family environment,” which is a married home with a mother and a father, he said.
“Today’s ruling was anti-child,” said Jerry Cox, president of the Family Council Action Committee. “The ACLU couldn’t defeat this good law in a fair election, so they used the court system against the people of Arkansas. This is the worst decision ever handed down by the Arkansas Supreme Court.”
The ruling leaves only a small number of states that openly disallow unmarried couples or gay couples from being foster parents or adoptive parents.
Virginia’s child welfare policy, like Act 1, limits caregiving to married couples and single individuals. The policy has been in the news recently because of proposed changes that prevent private agencies from considering sexual orientation, family status or religion in their placements. Such a change would drive faith-based private agencies from the state, hundreds of people said in public comments on the policy change.
Virginia Gov. Robert F. McDonnell has since said he will have the proposed nondiscrimination language removed, and keep the “status quo.”
Arkansas’ Act 1 was passed in November 2008 by 57 percent of voters. It prohibited people who were unmarried and “cohabiting with a sexual partner” from being adoptive or foster parents because that was “in the best interest of children.” Act 1 applied “equally to cohabiting opposite-sex and same-sex individuals.”
In December 2008, lesbian Sheila Cole and others filed a lawsuit against Act 1. Ms. Cole said the act would prevent her from adopting her granddaughter with her partner Jennifer Owens.