Breaking News: Arkansas Adoption Ban Falls

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.

4 responses to “Breaking News: Arkansas Adoption Ban Falls

  1. Well Julie you know I am a proponent of eliminating gender requirements in marriage. There is a practical reason for not allowing people with room mates to be foster parents and that would be that the children would be in the same living space as adults that had not gone through what I imagine are rigorous background checks and then also did not specifically express an interest in being a roll model for troubled youth.

    I see the logic in a law that says if your a foster parent you have to be single married or on board with a room mate that also wants to foster children. I mean the sex thing, again like in marriage, is really irrelevant to the State’s purposes. Last I checked its at minimum inappropriate to have any kind of sex in front of minors straight gay or even ala carte’, it sounds like a poorly written law that might actually need to be written better. You would not want to see a single straight person fostering kids in a home that had a revolving door of adult non-sexual room mates. People break up and move out I would think if you were going to move someone else in you’d need to give the kids back to the state unless or until the new room mate had a back ground check and indicated they too wanted to be a foster parent.

    • Yes, I think the problem here might be how the state drew its lines. Perhaps you could say that a person either had to live alone or everyone they live with has to be “on board” or cleared or whatever. They didn’t say that.

      Of cousre, all people who want to be foster parents/adoptive parents in Ark are screened individually (as is true everywhere else). While I’m sure this screening includes some investigation of living arrangments, I don’t know that it includes the “everyone on board” inquiry. Indeed, I don’t know generally how states deal with people who might have roomates. But what the court here was saying, I think, is that you have to treat all people with roomates the same–whether they are having sex with their roomates or not.

  2. “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.”

    I think the State has an interest in making sure that when they hand over the kid they have back ground checked the people who are going to be raising the kid. That the child will not be living around any other adult the state has not checked out.

  3. As in most cases, this referendum might have been passed by a majority of voters, but it was a minority of the eligible voters, according to my calculations. Visit my blog and you can see my math.

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