Arkansas Supreme Court Strikes Down Ban On Gay Adoptions

WASHINGTON -- Arkansas' high court struck down the state's law barring same-sex couples from adopting on Thursday. In an opinion published without dissent, the court argued that the law violated individuals' right to privacy. Supporters of the law are expected to fight the ruling.

Arkansas voters approved Act 1 as a ballot measure in 2008. It prohibits unmarried couples who live together from adopting children, in effect shutting out gay and lesbian couples, who are not allowed to marry in the state.

"Act 1 directly and substantially burdens the privacy rights of 'opposite-sex and same-sex individuals' who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner," concluded the court in the ruling embedded below. "The pressure on such couples to live apart, should they wish to foster or adopt children, is clearly significant."

It also argued that Sheila Cole, one of the plaintiffs in the case, was faced with a "pernicious choice" when she tried to adopt her granddaughter, who was placed in foster care because Cole was unable to adopt her. (The child was eventually placed in Cole's home.)

"[Cole] can either give up her fundamental right to sexual intimacy in her home free from investigation by the State into her sexual practices in order to adopt or foster or forego the privilege of having children by adoption or fostering," the court added. "We hold that the burden inflicted on her is direct and substantial."

LGBT and civil rights organizations immediately hailed the decision.

"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 Human Rights Campaign President Joe Solmonese. "Too many children are in need of a loving home and the court has rightfully put their interests ahead of discrimination."

The American Civil Liberties Union (ACLU) brought the case on behalf of a group of same-sex couples. Rita Sklar, executive director of the ACLU of Arkansas, called the ruling a "relief for the over 1,600 children in the state of Arkansas who need 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," she said. "The court clearly saw that this ban violated the constitutional rights of our clients and thousands of other Arkansans."

The Family Council Action Committee (FCAC), which was defending the law, expressed disappointment with the State Supreme Court ruling. President Jerry Cox called the decision a "classic example of judicial tyranny."

"We have said all along that Act One was about child welfare, and fifty-seven percent of the voters in 2008 agreed," he said in a statement. "They declared that the State of Arkansas has an obligation to adoptive and foster children to ensure that they are placed in the best possible homes. The Arkansas Supreme Court has chosen to run roughshod over the people’s will and refused to uphold a good law that protected the children in the state’s care."

This high court's decision is unlikely to stop the FCAC. Cox said that "all available options are still on the table," specifically naming the possibility of bringing the gay adoption ban back as a state constitutional amendment or exploring the possibility of passing a law through the legislature.

Mississippi and Utah are now the only two states with an explicit ban on unmarried, co-habitating couples adopting. Other states have implicit bans that don't necessarily outlaw gay adoption but make it very difficult in practice. One such state is Virginia, where Gov. Bob McDonnell (R) is currently considering whether to derail a proposal, recommended by his Democratic predecessor, that would amend state regulations to allow same-sex couples to adopt.

As the Washington Post explains, "Currently, only married couple and single men and women -- regardless of sexual orientation -- can adopt in Virginia." The new proposal would "force state-licensed private and church-run agencies to allow unmarried couples -- heterosexual or homosexual -- to adopt children."

Gov. McDonnell must make his recommendation to the State Board of Social Services by April 16.

DHS v. Cole

Comments

[Dr Arthur Ide]

07:16 PM on 05/06/2011

The Family Council Action Committee (FCAC) President Jerry Cox called the decision a "classic example of judicial tyranny." Obviously he is linguistically challenged. It was first used in 1368, and meant "the government or rule of a tyrant or absolute ruler" being any harsh discipline or oppression, which means that the Arkansas Supreme Court was being harsh on the basic human rights of families. To the contrary, the Arkansas Supreme Court unanimously sided with families and the right of families to exist, rather than to leave children without families which is the definition (since ancient Greece) of letting those involved in a decision to make that decision without the interference of outside groups, which, according to history, form from theological terrorist cells (such as the Inquisition in Spain, John Calvin in Geneva, the most evangelical organizations in the USA). It is time that judges speak for all people--not for the fanatical fundamentalists fuming about having a free society.

[marind]

07:25 PM on 05/03/2011

FCAC statement is absolutely nauseating.

[Jon Dorian]

11:58 AM on 04/20/2011

...You ask why? Because they have backward judges!

[Jon Dorian]

11:57 AM on 04/20/2011

Some children don't have a chance to make it out of the womb alive; and more and more children who do don't have a chance for a normal life.

Arkansas is no as the "backwards state"; now we know why!

[KenClay]

03:40 PM on 04/08/2011

republicants are HORRIBLE CREATURES....

[tinarm]

11:44 AM on 04/08/2011

I live in Arkansas I can tell you that the law when it was voted on was worded completely wrong. It made it sound as if you voted yes you were voting for the rights of everyone to adopt and foster children. In fact if you voted yes you were voting against rights for gays, couples that are not married and single individuals. Another one of those republican, pull the wool over your eyes crap. I had to explain it to my parents over and over. Most Arkansas wanted everyone to be able to adopt or be foster parents, its the wording every time that gets most people.

[dustyoh]

12:28 PM on 04/08/2011

I live in Arkansas, and I totally agree. I stood in the booth reading the law over and over trying to figure out what I was reading.

[tinarm]

12:46 PM on 04/08/2011

I know, I spent weeks and weeks trying to inform as many people as I could. Most that I spoke with just thought it was horrible how they were trying to mislead people. Even older individuals didn't like that law. Most thought that anyone who was a good person regardless of anything else that wanted to adopt or be a foster parent should be. They couldn't believe it. You know it is the bible belt, but one thing is for sure, people here still give a crap about kids.

[marind]

07:27 PM on 05/03/2011

The comments here do make me feel better about the good folk of Arkansas. Sounds like the initiative was shamefully misleading. I'll look for a copy of it on line.

[Mediorite]

11:36 AM on 04/08/2011

Inch by inch, row by row, we're gonna make this garden grow.

[leftyirishwoman]

01:51 PM on 04/08/2011

That is one of the most pleasing ways to look upon life that I have heard in some time.

All of us know of at least one heterosexual, married couple who are horrible parents to their children. It saddens us, and we make remarks about it.

Have you met a gay or lesbian couple that literally jumps over the moon to foster or adopt a child? I have, and they are God's gift to those children. LGBT people who have experienced difficulty of our so "Normal Only" society and then desire to take children into their homes are very much aware that everyone is unique and that individual children need different things to be not only happy but also fulfilled, functioning adults.

Anyone who doesn't take the time to meet LGBT parents, and still feels that feel such bigotry is a jerk (I keep getting moderated if I use my full polysyllabic vocabulary.)

[MissingAmerica]

10:55 AM on 04/08/2011

A bit of good news! Gay couples can give just as much love as a straight couple. To deny them the right to share that love with adopted children is to deny adoptable but unwanted children the right to happiness and love that even the ignorant homophobics take for granted. Good going, Arkansas. Thank you for doing the right thing. I hope that supporters of the ban lose. It's time that the intelligent start standing up to protect their own!

[schnauzergirl]

11:29 AM on 04/08/2011

And not just gay couple. Arkansas banned adoption by heterosexual couple if they were not married, but living together. A marriage certificate does not assure a loving couple and a good home, just like the lack of one does not automatically mean the adults involved could not provide a good home to the child.

[daward2]

03:40 PM on 04/11/2011

The law was worded with things like Romer v. Evans in mind. For a state to make a law against us gay folk would be federally unconstitutional solely for animus against gays. The pushers of this ban were keen to this and made it applicable to every unmarried cohabiting couple as you said.

According to Arkansas's Department of Human Services guidelines, single parents are better than any couple, regardless of the sexual makeup. But the true intent from the beginning was to hit the gay couples. Straight unmarried couples were collateral damage.

Fanned/faved for your comment.

[charlesdickens]

09:00 AM on 04/08/2011

Take that, Anita Bryant! The times they are a-changing.

[Atwill]

07:31 AM on 04/08/2011

Good. And Bible thumpers need to stay out of it. Gay people do not recruit and do not try to turn people gay, which is impossible.

[psbintl]

11:37 AM on 04/08/2011

Bible thumpers need to stay out of everything! They are tearing this country down!

[Babis]

11:28 PM on 04/08/2011

But those goddamn bible thumpers are always recruiting and trying to turn people.

[DrakeUnlimited]

05:44 AM on 04/08/2011

I live in Arkansas, this is refreshing to hear
amidst all the chaos in the world, that Gay
rights issues are making progress, even
here in the South. If you want to do a man,
Go for it. That's just more women for me ;p

[Steve Shonder]

05:02 AM on 04/08/2011

Why is gay marriage even an issue? If they can get married then they will be spending money on marriage licenses and the government needs all the money they can get. It'll work out for everyone.

[bart4u]

01:45 AM on 04/08/2011

Baggers lost this one.

[mary896]

11:38 AM on 04/08/2011

And the rest of us AMERICANS, the true patriots, GAINED on this one. More unwanted, unloved and family challenged childred will be welcomed into happy families rich with love and support and opportunity now..... It's a good day. And Arkansas made that happen!

[SouthernQ]

03:45 AM on 04/08/2011

Someone like you would be more likely to m0les.t him than his adoptive parents, dolt.

[Bluemax1]

05:06 AM on 04/08/2011

What an ignorant statement. I guess you told us who you are.

[hennies]

12:11 AM on 04/08/2011

It's apparently tyranny these days to allow people to have a right to privacy? I can't say I'm surprised that the FCAC would say such a thing, but that's absolutely ridiculous.

[marind]

07:30 PM on 05/03/2011

"Tyranny" is anything the right wing doesn't like.