Arkansas Ban on Adoption by Gay (and Other Unmarried) Cohabitors Struck Down

The man’s got his eye on me/And that’s an invasion of my privacy

The Supreme Court of Arkansas unanimously held today that the state’s ban on adoption or foster parenting by persons who are cohabiting with a sexual partner outside marriage violated the state constitution.  In Arkansas Department of Human Services v. Cole (opinion here), the court concluded that the law violated the state constitutional right of privacy.  This decision is a great development for the children of Arkansas who need parents or foster parents.

The current ban on adoption or foster parenting by unmarried sexual cohabitants was written in sex-neutral terms, so that it applied to people who cohabit with a sexual partner of a different sex or one of the same sex.  It had been adopted by the voters through an initiative in 2008 in the wake of a 2006 Arkansas Supreme Court decision striking down a ban on foster parenting by any individual if a lesbigay person was a member of his or her household.

In Cole, the Arkansas Supreme court did not rely on the transparent discriminatory intent behind the initiative ban.  Rather, the court’s decision built upon a 2002 Arkansas Supreme court decision in Jegley v. Picado.  Jegley had held that the Arkansas Constitution contained an implicit right of privacy, and that a state law criminalizing oral or anal sex by same-sex couples violated that right as applied to private, consensual, noncommercial sex.  Today, the Cole court reasoned that the parenting ban burdened the right to engage in sexual intimacy, forcing people to “the pernicious choice” between being eligible to adopt or to foster parent a child, or being able to exercise their fundamental right of privacy.

Because the right of privacy, including the right to engage in sexual intimacy, is fundamental under the Arkansas Constitution, laws burdening this right are examined by Arkansas courts under a nondeferential, “strict” or “heightened scrutiny” standard.  The law burdening the right must be  narrowly tailored or the least restrictive way of furthering some compelling (not just legitimate) state interest.  Although the court agreed with the defendants that protecting the best interests of children is a compelling interest,  Because some people cohabiting in a sexual relationship with someone outside marriage were conceded to have the ability to be good parents, and because the initiative enacted an across-the-board, categorical ban on adoption and fostering, when the individualized assessment process for adoptions and foster parent placements was adequate to protect children’s interests, the Arkansas Supreme Court held that the ban was not the least restrictive means of protecting children.

Before Arkansas changed its nickname to “the Natural State” (‘sex is natural, sex is good’?), it was the “Land of Opportunity.”  With the decision in Cole, it is once again a land of greater opportunity for children to be raised by loving, competent parents.

[edited to add labels]