The Arkansas Supreme Court has struck down a law that barred a person cohabiting outside of marriage from becoming an adoptive or foster parent. I’ve written about this before (most recently when the case was argued) if you want to go back and read up.
The law was enacted by ballot initiative. While it applied equally to all those in cohabiting relationship–whether same-sex or different-sex relationships–it effectively precluded any member of a same-sex cohabiting couple from serving as an adoptive or foster parent. (Different sex couples could get married. Same sex couples cannot get married in Arkansas, nor will Arkansas recognize their marriages if they have married in a state where they are permitted to do so.)
While you might frame this as a lesbian/gay rights issue (and you might understand it that way based on the longer history of Arkansas adoption restrictions), the court considered it a privacy problem. How is the state to determine which people are barred from adoption? It isn’t all people who live with another person outside of marriage–only those who live with another person with whom they have a sexual relationship outside of marriage. Thus, your eligibility to adopt/foster turns on your private sexual conduct.
Arkansas has a strong strain of privacy protection in its constitution. It protects in individuals right to engage in private and consensual sexual conduct. The court found that the adoption restriction burdened that right–because if you exercised it, you couldn’t be an adoptive parent, while if you didn’t exercise it, you could.
I’m sure there is more to say here, but I wanted to get a short post up quickly. Maybe tomorrow I’ll come back to this.