Just a quick note to follow up on a case I have blogged about in the past. You may recall that Arkansas is among a number of states that prohibit people in cohabiting unmarried couples from being adoptive or foster parents. The case has just been argued in the Arkansas Supreme Court. You can actually watch the argument (the case is Arkansas v. Cole) and/or you can read Professor Nancy Polikoff’s analysis of the argument.
Just a little background first: Restrictions on adoption/fostering by those in non-marital relationships have become more common as it has proven both politically and legally difficult to categorically bar lesbian and gay people from adoption/fostering. (Witness the recent fall of the Florida statute.) In states where lesbians and gay couples cannot marry, a ban on individuals in unmarried cohabiting couples adopting eliminates all those in lesbian and gay couples from contention. Of course, it also eliminates those in unmarried heterosexual couples, too. And notably, it does not eliminate single people, be the lesbian, gay or whatever.
Arkansas has a statute like that and it was struck down by the Arkansas Circuit Court last year. The proponents of the ban appealed that decision to the state supreme court. That’s the argument that was just heard.
It’s interesting to listen to the general tenor of the argument. The Arkansas Supreme Court–not a notably radical court–does not seem overly inclined to agree with the logic of the statute. For starters, various justices noted that a person living with another person could adopt as long as the relationship with that other person wasn’t sexual. That means in order to figure out if you are in the prohibited category, the state has to ask you about your private consensual sexual conduct. That raises concerns about state intrusions into individual privacy.
In general, the court seems to be fairly unsympathetic to the state’s position. After all, anyone who is going to be allowed to foster or adopt is individually screened. No one really tried to argue that all people who are in non-marital cohabiting relationships are unsuitable. Indeed, the facts of this case (if you go back and read the earlier post) show at least one perfectly suitable person. So why bar everyone in the group if it isn’t because of some desire to punish or otherwise stigmatize?
That will ultimately be the question the court has to take up. Stay tuned.