Arkansas Supreme Court Strikes Down Parenting Ban As Contrary to Children’s Welfare

LITTLE ROCK, Ark. - The Arkansas Supreme Court today declared unconstitutional a law that bans any unmarried person who lives with a partner in a sexual relationship, including those in same-sex relationships, from serving as an adoptive or foster parent. The American Civil Liberties Union and the ACLU of Arkansas filed a lawsuit against the ban on behalf of children, parents and couples harmed by the law, known as Act 1, in December 2008. The Arkansas Supreme Court’s decision today affirms an earlier ruling by the Pulaski County Circuit Court holding that Act 1 violates the Arkansas Constitution's guarantee of a right to privacy, a ruling that Arkansas Attorney General Dustin McDaniel appealed.

“We are excited about today's ruling,” said Wendy Rickman, who, along with her partner of 11 years, Stephanie Huffman, was represented in the case by the ACLU. Rickman and Huffman adopted a special-needs foster child in Arkansas and would like to open their home to another special-needs child. “We feel that the court thoroughly reviewed the facts of the case and ruled accordingly. We look forward to the opportunity to go through the adoption process once more and to welcome another child into our family.”

“This ruling is a relief for the over 1,600 children in the state of Arkansas who need a permanent family. The state admitted good families would be banned by this law, and that we have a critical shortage of homes,” said Rita Sklar, Executive Director of the ACLU of Arkansas. “This ban wouldn’t even allow a relative – gay or straight – to foster or adopt a child with whom they had a close relationship, so long as that relative was unmarried and living with a partner. The court clearly saw that this ban violated the constitutional rights of our clients and thousands of other Arkansans.”

In addition to Rickman and Huffman, plaintiffs participating in the case include three teenagers in state care who are awaiting placement with a foster or adoptive family, a grandmother who was barred by Act 1 from adopting her own grandchild and several married heterosexual couples who are prohibited by Act 1 from arranging for certain friends or relatives to adopt their children if they die or become incapacitated.

As the state Supreme Court observed: “Act 1 presents a pernicious choice….[Individuals] can either give up [their] fundamental right to sexual intimacy in [their] home free from investigation by the State into [their] sexual practices in order to adopt or foster, or forego the privilege of having children by adoption or fostering.” 

The court also found that “by imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the State and our courts to conduct…individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents. As a result, Act 1 fails to pass constitutional muster under a heightened-scrutiny analysis.”

“This law was an assault on Arkansas’ most vulnerable children and arbitrarily denied them the opportunity to be placed into good and loving homes,” said Christine P. Sun, senior counsel with the ACLU Lesbian Gay Bisexual and Transgender Project. “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.”

Act 1 did not prevent single people, regardless of the number of romantic partners they have, from adopting or fostering children in Arkansas, and did not bar unmarried cohabiting couples from serving as guardians, which has lower standards of approval and oversight than fostering and adopting.

In a similar ruling in 2006, the Arkansas Supreme Court struck down a law explicitly banning gay people from serving as foster parents, finding that there was no connection between parenting ability and a parent’s sexual orientation and that there was no connection between the ban and any child welfare purpose.

“The courts have clearly decided that the bans do nothing but hurt kids,” said Holly Dickson, staff attorney for the ACLU of Arkansas. “We’ve faced attempts at bans like this in Arkansas for over ten years now, and it is long past time to stop denying children good homes.” 

Attorneys on the case include Marie-Bernarde Miller and Daniel J. Beck of Williams & Anderson PLC, on behalf of the ACLU of Arkansas; Sun, Leslie Cooper and Rose Saxe of the ACLU; and Garrard R. Beeney, Stacey R. Friedman, Stephen Ehrenberg, Emma Gilmore, Christopher Diffee, Taly Dvorkis, Angelica Sinopole and Jared A. Bennett Feiger of Sullivan and Cromwell.

The decision can be found here: www.aclu.org/lgbt-rights/cole-v-arkansas-opinion

More on this case, including videos featuring some of the plaintiffs, can be found here:
www.aclu.org/lgbt-rights_hiv-aids/cole-v-arkansas-case-profile