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Arkansas Supreme Court Overturns Adoption Ban

Jim Burroway

April 7th, 2011

The Arkansas Supreme Court today ruled that a voter-approved initiative banning unmarried cohabiting couples, including gay couples, from adopting or serving as foster parents. The court found that because the law singles out cohabiting couples for the ban while allowing single individuals to adopt or foster children, it encroaches on a key right to privacy:

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. The pressure on such couples to live apart, should they wish to foster or adopt children, is clearly significant. In Jegley, the burden perpetrated by the State was criminal prosecution for sodomy, although the act took place in the privacy of the bedroom. In the case before us, the burden dispensed by the State is either to remove the ability to foster or adopt children, should sexual partners live together, or to intrude into the bedroom to assure that cohabitors who adopt or foster are celibate. We conclude that, in this case as in Jegley, the burden is direct and substantial.

In 2002, the Arkansas Supreme Court struck down that state’s sodomy law in the case of Jegley v. Picado, nearly a full year before the U.S. Supreme Court struck down sodomy laws nationwide in Lawrence v. Texas. A state judge struck down Arkansas’ adoption ban last April. The attorney general then appealed to the Supreme Court, which led to today’s ruling.

Because the court found that Act 1 infringes on a key right to privacy, the court determined that heighened scrutiny rather than rational-basis was the appropriate standard for the ruling:

We have held in this case that a fundamental right of privacy is at issue and that the burden imposed by the State is direct and substantial. We now hold, as an additional matter, that because of the direct and substantial burden on a fundamental right, the standard to be applied is heightened scrutiny and not a rational-basis standard. Using the heightened- scrutiny standard, because Act 1 exacts a categorical ban against all cohabiting couples engaged in sexual conduct, we hold that it is not narrowly tailored or the least restrictive means available to serve the State’s compelling interest of protecting the best interest of the child.

Utah and Mississippi are the only states remaining with adoption bans affecting gay people. Utah, like Arkansas until today, bans cohabiting couples from adopting but allows single adults to adopt when married couples aren’t available. Mississippi law allows unmarried and married adults to adopt regardless of cohabitation status, but contains a separate clause stating, “Adoption by couples of the same gender is prohibited.”



April 7th, 2011 | LINK

Don’t Arizona and other states have laws requiring that if two people co-adopt, they must be of different genders? In other words, one gay person can adopt, but not two jointly, or a person cannot adopt his or her partner’s biological children as a second part if they’re of the same gender?

And how would this affect laws like the one working its way through the AZ legislature that gives preference to married couples (which excludes same-sex couples, since they can’t legally marry here)?

April 7th, 2011 | LINK

*second parent, not second part.

Regan DuCasse
April 7th, 2011 | LINK

I think the state, rightly, should put a op sex couple’s marital status under scrutiny when considering adoption of a child.
A gay couple committed for years and stable for that long, cannot marry and never has the choice to, nor the federal protections that would benefit their relationship with that child.
Straight couples, however DO have that choice and it bears examination of why they don’t take that option when it’s open to them.

The most likely reason would be they aren’t divorced from previous spouses, they are hedging other state benefits, their relationship ISN’T stable enough or provable as committed enough to ensure that child’s optimum welfare.
These are potential complications. These are indications of less stability than needed.

There are family members who might be in this situation who can adopt the child of a blood relative.
Marital status scrutiny is very different for gay couples.
Single parents might fall into the category of a partner entering the situation the state has no knowledge of later on.

I see why privacy clauses would come into play, but some marital status situations read better as not optimal than others.

Unfortunately, the very children who have been need of foster care, come from situations where their biological father isn’t present, and the mother’s boyfriend endangers the child.
There have been incidents very recently, in CA and in NY where very young children, placed in the home of unmarried foster couples of op sex, hetero orientation, the boyfriends ended up murdering the children.

In all the last two and a half decades of scrutiny of CPS in CA, there was only ONE incident of a lesbian couple abusing the biological son of one of the women.
Just one.
Conversely, there have over two hundred incidents of children abused in foster care by their caregivers in op sex/or hetero homes. And of those, one hundred and seventy eight culminated in the murder of the child.

Straight folks have really bad track records when it comes to child care. Even in foster care.
Which means that discrimination against gay people, strains the system in finding competent care and does nothing to prevent abuse of children by straight people.

Timothy Kincaid
April 7th, 2011 | LINK

I can see a certain logic in requiring that any two persons who adopt be married (or in some other legal entanglement). It does imply a level of commitment to the relationship that goes beyond the casualness of cohabitation.

However, that presumes that the two persons are allowed to marry. Otherwise it is but another of the artificial barriers that pretend to be in the best interest of children but are designed to be discriminatory.

And, yet again, those who seek to disadvantage gay people have done themselves and the children a disservice.

By denying gay people the ability to form a legal relationship, they deny themselves the right to require a legal relationship before adoption and deny the children a measure of stability that such a requirement might add.

Timothy Kincaid
April 7th, 2011 | LINK

Regan…thank you for bringing the facts. As hard as it may be for me to read them without becoming sad, then horrified, then angry.

Regan DuCasse
April 7th, 2011 | LINK

Exactly, Timothy, that’s why I mentioned which op sex condition might exist where the couple cannot marry, or aren’t allowed to.
They would have to be still married to previous spouses, most likely.

But an unmarried straight couple who remain that way for no reason, because obviously they legally COULD marry, begs the question, why don’t they?

This of course does not apply to gay couples who don’t have the option in the majority of states and NO federal benefits whatsoever in marriage.
And yes, this information regarding the foster care system just in CA is appalling.

There was a famous case of a lesbian couple who had taken in an infant girl whose mother had been a drug addict and who’d been imprisoned often. I think the mother finally died of a drug OD.
An aunt (a sister of the mother) petitioned to take the child in her custody along with her husband. The baby by then, had been with her lesbian foster mothers for over a year, was thriving and come through drug withdrawal and other issues very well in their care. She was 18 mos old went she went to live with her aunt and her aunt’s husband.
Within six months, the baby was dead from a beating.
She’d been starved and there was physical evidence of fractures that hadn’t been treated.
The case was part of a series in the LATimes on the willing and competence of gay foster and adoptive parents, and how they are given hyper scrutiny compared to straight couples. Who should have the same requirement.

Family are given priority over non kin foster care. However, sometimes churches are guilty of being advocates for foster care if they object to gay couples having the children.
Just as they are guilty of petitioning for the parole of sex offenders (and other kinds of violent criminals) if it appears they have effectively embraced Christianity.

Either way, it’s always horrible to see child bearing and care privileges bestowed on people who ultimately destroy a child’s life.

April 8th, 2011 | LINK

So, in Mississippi, a single adult male can adopt, but not s same-sex couple. Kinda reminds me of the girl from Russia adopted by an American man, who then filmed himself raping her over a period of several years. Then said videos were put on the internet. He specifically requested a child with blonde hair and blue eyes. But, a gay couple, no! That would be an ‘unhealthy’ environment for the child.

David Weintraub
April 8th, 2011 | LINK

The situation in Virginia is the same – single parents can adopt or foster regardless of orientation, but not unmarried couples.

There is a current “controversy” over a section in the Virginia Department of Social Services regulations that prohibits discrimination against prospective parents on the basis of who they are, essentially affirming the “best interests of the child” standard, but nothing has been done to address the discrimination against couples. Thanks, Regan, for your insights.

April 9th, 2011 | LINK

Wikipedia has a very interesting paragraph on disgraced former Board member of NARTH George Rekers’s testimony in an Arkansas adoption case:

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