The Arkansas Supreme Court today ruled the initiated act barring unmarried couples from adopting or fostering children is unconstitutional. There were no dissents on the seven-member court. Justice Robert Brown wrote the opinion.

It held the law is a violation of fundamental privacy rights under the Arkansas Constitution and declined to consider other issues raised in the appeal and cross-appeals. Significantly, this leaves no guidance on whether a U.S. constitutional challenge could be mounted to the state constitutional prohbition against same-sex marriage.

Here’s the opinion.

The initiated act was approved by 57 percent of voters in 2008. It was nakedly aimed at keeping children out of the homes of same-sex couples, but it was written to keep children out of the homes of any “cohabiting” couples. The ACLU brought the suit for a number of differently situated plaintiffs arguing that it served no purpose except to deprive children who needed them of suitable homes and that it was motivated by prejudice toward gay people. Circuit Judge Chris Piazza struck down the law on state privacy ground and the Supreme Court’s decision today affirmed that ruling.


As Piazza said, “due process and equal protection are not hollow words without substance.” The court held in its landmark Jegley ruling striking down the criminal sodomy law that the fundamental right to privacy encompasses the right of people to engage in private, consensual, non-commercial sexual conduct. The court said the adoption amendment falls because the privacy right of private sexual relationshp is conditioned on foregoing the privilege of adoption or foster parenting. In short, it penalizes someone for a protected activity, private sexual relations.

The court drew a distinction in considering cohabitation in custody and other domestic cases. There, the best interests of a child are paramount, the court said. Each is decided on a case-by-case basis. Act 1, though, is a blanket ban. The court noted a great deal of difference between a custodial parent’s sexual relationship with a third party, perhaps unknown to a child, and the rigorous review process for potential adoptive and foster parents.


The court said because the law restricted fundamental rights, it came under heightened scrutiny on whether the least restrictive means were used to achieve a compelling state interest.

The state defended the law. The Family Council, the conservative religious group that put the initiative on the ballot, intervened also to defend it.

The court said the law was neither narrowly tailored nor used the least restrictive means to achieve the goal of advancing the best interests of children. Witness after witness testified that no interest of a child was advanced by a blanket ban on unmarried couples. Even the Family Council’s own attorney conceded some unmarried couples would be suitable parents. The court said concerns about the stability of unmarried couples could be dealt with by a rigorous screening process.

The Family Council will denounce the ruling at a news conference at 11:30 a.m. at the Capitol. The instant e-mail reaction from the ACLU’s Rita Sklar? “We won!!!!”


UPDATE: Jerry Cox, who leads the Family Council effort to demonize gay people, said at this news conference his group might consider a state constitutional amendment to place his religion-oriented restrictions on adoption and foster parenting. Judicial tyranny and the worst decision ever by the Arkansas Supreme Court, he said. (See video of Cox on the jump). There is no bottom to his willingness to enforce punitive religious views on others, no matter how many children it harms. However: Lessons were learned in the last campaign, which confused many voters. Times also continue to change. I’d prefer not to fight the fight, but this time I think it will be won. And U.S. constitutional grounds remain to challenge all of Cox’s attempts to constitutionalize bigotry.

Gov. Mike Beebe on the other hand said:

The Department of Human Services will continue to carefully consider each foster-care and adoption application, with the best interest of the child the foremost concern. By expanding the pool of potential applicants, today’s Supreme Court decision will create more opportunities to match children with loving and supportive homes.

Let’s stick with today. It’s a big deal. A great day for human rights. A great day for children who need homes.

Good background on the case here. Also, two of the plaintiffs:

The couple commented in an ACLU news release on the decision: