Last week I only did the briefest of notes on the recent decision in Arkansas invalidating a statute that barred individuals cohabiting outside of marriage from becoming adoptive or foster parents. I want to return to the topic for a few more moments. Here are some links to other coverage in print and in blogs. For a detailed analysis of the opinion (which I won’t do) you cannot do better than Professor Art Leonard’s blog.
At the outset, I should note a mistake in my earlier discussion that ended up leading to some off-track discussion in the comments. By its very terms, the law prohibited people in non-marital cohabiting relationships from adoption or fostering. Thus while the discussions on the difference between adoption and fostering might be interesting, they aren’t pertinent here, since someone in the identified class cannot do either one.
I want to examine the operation of the statute and the construction of the case challenging it. It’s a fine example of a general statute confronted with a specific situation.
The statute creates a category of people who are barred from adopting or serving as foster parents–those cohabiting in a sexual non-marital relationship. Once it is established that the proposed adoptive or foster parent falls within that category, no further examination of particular case is needed. The specifics of a particular application are irrelevant.
I think there are two ways the state might articulate benefits from this sort of a scheme. First, the state can say the categorical exclusion directly serves the well-being of children, which is the immediate goal of adoption and foster care. To say this, the state must assert that the people in the excluded category would necessarily be poor adoptive of foster parents. In this case, the state asserted (according to the opinion) that on average cohabiting environments facilitated poor performance outcomes for the children and exposed children to higher risks of abuse.
The state can also say the the blanket prohibition is economical. Because all people in the category are excluded, no resources are expended evaluating individual applicants. If you assume that all or even a substantial majority of the applicants in the category would be found individually wanting anyway (see the first argument), you’ve saved yourself a lot of time and trouble.
If you wanted to challenge this scheme, you could challenge the first assertion–about the general suitability of unmarried cohabitants as adoptive or foster parents. There’s plenty of literature to support such a challenge, but in the end the critical question will probably be how closely the court examines the question and how much deference the court gives to legislative (or in this case, electorate) judgment. If you look at the judge’s opinion on the first point, you’ll see that he substantially deferred to the legislature, requiring only that the judgment be rational (as opposed to requiring that it be likely correct, say.)
While the plaintiffs challenging the law made these and other arguments, I want to look at how they presented their case rather than what specific arguments they made. Instead of resting on the generalities, the plaintiffs’ legal team invites us to see the operation the law from from the point of view of a particular family.
Sheila Cole lives with her partner of nine years in Tulsa, Oklahoma. Her daughter gave birth to a baby girl in May, 2009. Within two months the baby was in protective custody of the state. Sheila asked to become foster mother to the child. She travelled four hours each way each week to spend time with the infant.
The state of Oklahoma (not generally said to be a particularly radical place) conducted a home study and found her suitable. All the witnesses from Arkansas social services agreed that placing her granddaughter with her would be best for the child. Indeed, it doesn’t seem there was any doubt in the matter. But there was that statute, which categorically disqualified her.
Notice how the state’s justifications fare in the face of these specific facts. Even if you accept the general proposition that children are better off not placed with unmarried cohabitants, that’s not true for this child. This child is better off placed with Sheila Cole, who also happens to be an unmarried cohabitant. And even if you accept that there could be general economies, would that justify denying this particular child the best chance she can have? It’s hard to deny a particular child what is in her best interests based on generalized interests in economy.
You can see this as a specific iteration of a broader question: Should there be categorical exclusions for adoptions–certain people who, by virtue of their membership in a particular category, can never be eligible? And if we say “yes” to that–that there are some categories of people who should be systematically excluded–what do we do when we are confronted with a specific child in a specific circumstance where the child’s best option is someone in the prohibited category?