Ark. High Court Delivers Victory for Equality in Striking Ban on Gay Adoptions

April 7, 2011

The Supreme Court of Arkansas’s rejection of a voter approved ballot measure barring gay couples from adopting is a being widely hailed as a victory for equality, but derided by a lone Religious Right outfit as creating a threat to the state’s youth.

In Arkansas Department of Human Services v. Cole, a unanimous high court upheld a lower court ruling that concluded the ballot measure, Act 1, violated privacy rights protected by the Arkansas Constitution.

The measure approved by 57 percent of voters in 2008 bars children from being adopted by a parent who is “cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.” The American Civil Liberties Union (ACLU) represented several couples in a lawsuit challenging the measure’s constitutionality.

Associate Justice Robert L. Brown cited state court precedent that the “Arkansas Constitution does guarantee citizens certain inherent and inalienable rights, including enjoyment of life and liberty and the pursuit of happiness, and … the right of citizens to be secure in their own homes.” Moreover, Brown noted that “privacy is mentioned in more than eighty statutes enacted by the Arkansas General Assembly, thereby establishing ‘a public policy of the General Assembly supporting a right to privacy.’”

Brown concluded that Act 1 was indeed a violation of privacy rights. Under the act, “the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children. The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic. They must choose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt of foster.”

Christine P. Sun, senior counsel for the ACLU Lesbian Gay Bisexual and Transgender Project, hailed the opinion, saying the “ban did nothing positive. It required the government to intrude into the private lives of Arkansans for no child welfare purpose at all. We are relieved that the court agreed that the law is unconstitutional.”

Human Rights Campaign (HRC) President Joe Solmonese said the Arkansas high court had “removed a discriminatory barrier for loving gay and lesbian couples who, child welfare experts agree, are equally able parents.”

Jerry Cox head of the Family Council, a Religious Right group that helped push passage of Act 1, complained that the Supreme Court had belittled state voters with the ruling, and said his organization would urge lawmakers to amend the constitution to ban same-sex couples from adopting, the Arkansas Democrat Gazette reported.

The Huffington Post’s Amanda Terkel noted that “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 regulation to allow same-sex couples to adopt.”