News in Brief: Update from Arkansas

As I mentioned at some earlier point in the blog, this past election day Arkansas enacted a ban on adoption/fostering by unmarried couples.   More specifically, the law prohibits individuals who are part of an unmarried couple from adopting/fostering.   There’s an editorial in today’s New York Times denouncing the new law.   I’m a tad surprised at such high-profile discussion of it, but it is occasioned by the filing of a lawsuit challenging the law.    (A more detailed discussion of the lawsuit can be found here.)

Perhaps the relatively high-profile status given the story in the NYT editorial suggests that the struggle over parenting by lesbian/gay people is going to get more attention generally.  Over the past years the numbers of lesbians and gay men raising children has increased quite dramatically.  Most of that has occured below the legal radar, however.

There have been sporadic attempts to stem this tide by enacting restrictive statutes, but no broad success in that front comparable to the anti-marriage movement.   That’s partly because lesbians can become parents fairly simply–all they need is donor sperm, and generally they can get access to donor sperm easily.   Since a woman who gives birth is a mother, it’s hard to stop lesbians from becoming mothers.   

So those opposed to lesbian/gay parenting have focused on restricting access to adoption/fostering.   A few states have restrictive statutes, some of them, like Arkansas, quite new and some fairly old.   (Florida has the most-long-standing, dating from the Anita Bryant days, but that has recently been held unconstitutional in two cases.)

If you look at the more detailed account of the Arkansas lawsuit you will see that there are strong arguments (legal as well as social policy) against these restrictive bans.    Further, individual cases involving specific children, like those in the recent Florida decisions and some presented in this new Arkansas case, highlight the harm done to specific children in the name of some general social policy.

Though I haven’t looked into it, it seems the Arkansas statute is not simply anti-lesbian/gay parenting.   A single lesbian or gay man could adopt, as could a single heterosexual person.   Only unmarried couples (which necessarily includes all lesbian and gay couples in Arkansas) are excluded.   Thus, the statute expresses most clearly a preference for married over unmarried couples, but not a preference for couples over single people.  That’s an odd hierarchy, which might have been the result of some assessment of political realities in the state.   It will be interesting to see how the court’s analyze it all.