Gender & Sexuality Law Blog

Kathleen Cochrane is s 2008 graduate of Columbia Law School, and is now an associate at Sullivan and Cromwell, after having clerked for the Honorable Julia S. Gibbons, United States Court of Appeals Sixth Circuit.  Her firm served as co-counsel with the ACLU in a recent case in Arkansas, and she offers these thoughts on the case:

On Friday, April 16, 2010, an Arkansas court struck down a law preventing unmarried, cohabiting individuals from adopting or fostering children under the age of eighteen.  The law, known as “Act 1,” was approved by voters in a ballot initiative passed on November 4, 2008, with 57% in favor and 43% opposed.  Sullivan & Cromwell LLP and the American Civil Liberties Union challenged Act 1 on behalf of several plaintiffs on state and federal constitutional grounds, including a claim that the law unconstitutionally infringed upon the fundamental right to privacy and the right of adults to maintain intimate relationships.

Plaintiff Sheila Cole and her partner of nine years live in Tulsa, Oklahoma.  Sheila’s daughter had a baby girl in May 2009.  The baby was placed in protective custody in Bentonville, Arkansas, after being taken to a hospital with multiple broken ribs when she was about 2 months old.  Sheila asked Arkansas to let her granddaughter join her in Tulsa, and offered to become her foster mother.  Every week, she drove four hours to spend time with the baby.  The state of Oklahoma did a home study and approved Sheila.  All of the witnesses from the State of Arkansas agreed it was best to place the granddaughter with Sheila.  Sheila’s application was pending with the Arkansas Department of Human Services when Act 1 passed.  Act 1 barred placing the granddaughter with Sheila without any regard for what was in the best interests of the child.

Plaintiffs and defendants Arkansas Department of Human Services, et al., filed cross-motions for summary judgment on the state and federal constitutional claims.  The contrast in the court’s analysis of the federal claims versus the state claims was striking.  The court found that the case involved no fundamental rights and implicated no suspect classes under federal law.  The court therefore applied rational basis review and stated that the state of Arkansas argued several legitimate governmental purposes including that cohabiting environments generally facilitate poorer child performance outcomes and expose children to higher risks of abuse than do homes where the parents are married or single.  Noting that rational basis review may be supported by mere “rational speculation,” the court found that the state had a legitimate governmental purpose in enacting Act 1 and granted summary judgment to the state of Arkansas on all federal claims.

The court then described how the Arkansas State Constitution provides greater protection for individual rights than does the federal constitution, including a fundamental right to privacy that protects “all private consensual, non-commercial acts of sexual intimacy between adults.”  Jegley v. Picado, 349 Ark. 600, 632 (2002).  The court found that Act 1 significantly burdened individuals’ fundamental privacy rights and accordingly must be narrowly tailored to meet a compelling state interest.  Far from being narrowly tailored, however, Act 1 “casts an unreasonably broad net” by barring all cohabiting couples from adopting and fostering children.  The court was also particularly troubled by the fact that cohabiting homosexual couples had no redress:  while cohabiting heterosexual couples could become eligible to adopt or foster by marrying, homosexual couples are not permitted to marry in Arkansas.  The court granted summary judgment to the plaintiffs, finding that Act 1 violated the equal protection rights granted by the Arkansas state constitution.

Sullivan & Cromwell and the ACLU have been litigating this case since December 2008.  S&C has involved over 138 law students from five law schools, including Columbia Law School, in the case to assist with document review on the more than 1 million documents involved in the matter.  I’ve spoken with the S&C team involved with the case and they wish to express their sincere thanks to all of the people who helped with the review.  S&C views it as an honor not only to be associated with the case, but with the grass-roots effort on which the case was built.