Arkansas Supreme Court Unanimously Strikes Adoption/Foster Care Ban

The Arkansas Supreme Court has unanimously ruled that a popularly-enacted statute prohibiting adoptions by adults living in homes where unmarried adults were cohabiting violates the Arkansas Constitution's implicit protection of individual privacy.  The ruling in Arkansas Department of Human Services v. Cole, 2011 Ark. 145 (April 7, 2011), affirmed a decision by Pulaski County Circuit Court Judge Christopher C. Piazza.  Associate Justice Robert L. Brown wrote for the unanimous court.

There has been an ongoing struggle in Arkansas over the question whether gay people should be allowed to serve as foster or adoptive parents.  Although the measure enacted by the voters in November 2008 was phrased so as to obscure the goal of prohibiting gay adoptions, there can be little doubt that disapproval of gay people raising kids was a main motivator of the substantial money directed to the state by religious groups to support the initiative effort.  The ballot measure enacted a statute innocuously titled "Arkansas Adoption and Foster Care Act of 2008," referred to in the court's opinion as "Act 1," but its name on the ballot is more revealing: "An Act Providing That an Individual Who is Cohabiting Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less Than Eighteen Years Old." 

The ACLU brought suit on behalf of a group of unmarried couples, both same-sex and different-sex, lodging a host of claims under both the federal and state constitutions challenging the measure, but the claim that "stuck" and provided the basis for the ruling was premised on the Arkansas Supreme Court's earlier ruling in Jegley v. Picado, 80 S.W.3d 332 (2002), in which the court ruled that the Arkansas sodomy law violated a right of privacy implicit in the Arkansas Constitution. 

Although the Arkansas Constitution (in common with the U.S. Constitution) does not mention privacy as such, it does explicitly "guarantee citizens certain inherent and inalienable rights, including the enjoyment of life and liberty and the pursuit of happiness," wrote the Jegley court, and it also contains a specific right of citizens to be "secure in their homes."  Furthermore, the Arkansas legislature has enacted numerous laws over the years mentioning privacy.  Based on that, the Jegley court concluded that "Arkansas has a rich and compelling tradition of protecting individual privacy and that a fundamental right to privacy is implicit in the Arkansas Constitution."

In this case, plaintiffs argued that the initiative statute unconsitutionally burdened that right of privacy by conditioning eligibility to be a foster or adoptive parent on requiring the individual to refrain from maintaining a relationship that came within the protected sphere of the privacy right.  Because privacy is a "fundamental right," argued plaintiffs, the state could only maintain this statutory ban by showing that it was necessary to achieve a compelling state interest.

The State's response was that there is no fundamental right to be a foster or adoptive parent, but rather that these are privileges that the state can deny so long as it has a rational basis for doing so.  The State noted that the welfare of children in need of foster placement or adoption is a compelling interest, and argued that the State could constitutionally conclude that it served the best interest of children to place them in households headed by legally married couples. 

In support of its argument, the State relied on a relatively recent Arkansas Supreme Court decision, Alphin v. Alphin, 219 S.W.3d 160 (2005), in which the court wrote that extramarital cohabitation with children present "has never been condoned in Arkansas, is contrary to the public policy of promoting a stable environment, and may of itself constitute a material change in circumstances warranting a change of custody."  Based on this, the State argued, it was clear that there was no constitutional violation in disqualifying a potential foster or adoptive parent because they were cohabiting with another adult.

The Supreme Court totally rejected the State's arguments, holding that "the problem" with the State's argument "is that under Act 1 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," the court continued.  "They must chose 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 or foster."

Finding that in analogous situations the U.S. Supreme Court had "rejected the concept that constitutional rights turn on whether a government benefit is characterized as a 'right' or a 'privilege,'" the court rejected the State's argument that this provided a basis to reject the challenge.  "Act 1 exerts significant pressure on Cole [the lead plaintiff] to choose bewteen exercising her fundamental right to engage in an intimate sexual relationship in the privacy of her home without being eligible to adopt or foster children, on the one hand, or refraining from exercising this fundamental right in order to be eligible to adopt or foster children, on the other."   This, said the court, "thwarts the exercise of a fundamental right to sexual intimacy in the home free from government intrusion under the Arkansas Constitution."

As to the State's argument based on Arkansas decisions weighing unmarried cohabitation as a negative factor in determining child custody and visitation disputes, the court found the different context to justify a different approach.  In a custody/visitation dispute, the courts "look at all the factors, including a non-cohabitation order if one exists, to make the best-interest determination on a case-by-case basis," wrote Justice Brown.  "Act 1's blanket ban provides for no such individualized consideration or case-by-case analysis in adoption or foster-care cases and makes the bald assumption that in all cases where adoption or foster care is the issue it is always against the best interest of the child to be placed in a home where an individual is cohabiting with a sexual partner outside marriage."

The court also focused on the distinction between unmarried cohabitants and some "third-party stranger" having sex with a parent, such stranger not having been vetted with respect to suitability as a parent.  If unmarried cohabitants apply to foster or adopt a child, the child welfare agency can do a home study to determine whether both adults are suitable parental influences.  "Unsuitable and undesirable adoptive and foster parents are thereby weeded out in the screening process," wrote Brown.  "The same does not pertain to a third-party stranger who cohabits with a divorced or single parent" who then becomes embroiled in a custody or visitation dispute with a former spouse.

Having concluded that the statute imposes a "direct and substantial" burden on the exercise of a fundamental right, the court found that heightened scrutiny applies, which means that the statute cannot survive unless "a compelling state interest is advanced by the statute adn the statute is the least restrictive method available to carry out the state interest."  The trial judge had concluded that the statute was invalid "because it casts an unreasonably broad net over more people than is needed to serve the State's compelling interest.  It is not narrowly tailored to the least restrictive means necessary to serve the State's interest in determining what is in the best interest of the child."

The court reviewed the evidence presented at trial, finding that it fully supported the conclusion that disqualifying all unmarried cohabitants as a class was not necessary to serve the best interest of children, and indeed was harmful, because it would disqualify many people who would be suitable foster or adoptive parents.  Noting the State's objections, all based on generalizations about unmarried cohabitants such as alleged instability of non-marital relationships or heightened risk of domestic violence, the court pointed out that the process of evaluating prospective foster or adoptive parents was designed to identify such problems on a case-by-case basis. 

An "individualized home assessment" as carried out by the Department of Children and Family Services struck the court as "a thorough and effective means to screen out unsuitable applicants, depending on the individual case," and that this would be "the least restrictive means for addressing the compelling state interest of protecting the welfare, safety, and best interest of Arkansas's children." On the other hand, "by imposing a categorical ban on all persons who cohabit with a sexual partner," wrote Brown, "Act 1 removes the ability of the State and our courts to conduct these individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents."  Consequently, the statute "fails to pass constitutional muster under a heightened scrutiny analysis."

The court concluded that although the State had a compelling interest in securing appropriate homes for children needing foster care or adoption, the statute did not employ the least restrictive means to achieve that interest, and it was not "narrowly tailored" to avoid unnecessarily burdening fundamental rights.

The trial judge had dismissed the other federal and state constitutional theories raised by the plaintiffs, finding it unnecessary to decide them once it had determined that the statute was unconstitutional on any basis.  The Supreme Court agreed with that approach, rejecting a cross-appeal by the plaintiffs seeking a ruling on the other theories.  "We will not address the remaining arguments on cross-appeal," wrote the court, "because to do so would be to issue an advisory opinion."

The ACLU announced that lawyers who worked on the case included ACLU LGBT Project lawyers Christine Sun, Rose Saxe, and Leslie Cooper and Holly Dickson of the ACLU of Arkansas; joined by a team of lawyers at Sullivan & Cromwell, led by Garrard Beeney and Stacey Friedman; and Williams & Anderson, led by Marie-Bernarde Miller, in Little Rock.



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