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