Gender & Sexuality Law Blog

Big news today out of the Arkansas Supreme Court, but much of the media seems to be confused about what the news is.  The Huffington Post’s piece is typical: Arkansas Supreme Court Strikes Down Ban On Gay Adoptions.

In fact, the news is even better: the Arkansas Supreme Court struck down a statute that prohibited unmarried, sexually co-habitating couples from adopting or serving as foster parents regardless of their sexual orientation.  This is fabulous news for those of us who are concerned about one of the growing implications of some of the same-sex marriage cases: an increasing favor for marriage over non-marriage, and an increasing willingness on the part of courts to prefer married over non-married parents.  (Nancy Polikoff at American University held a conference on this issue a couple weeks ago – she calls it “the new illegitimacy”).

The Arkansas statute at issue, Art 1, states that “A minor may not be adopted or placed in a foster home if the individual seeking to adopt or to serve as a foster parent is cohabitating with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.” The law also restates the Arkansas Legislature’s judgment that “It is in the best interests of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabitating outside of marriage.”

The nub of the argument the Arkansas Supreme Court took on is that Act 1 forced the unmarried lesbian plaintiffs to choose between being an adoptive or foster parent and cohabitating with their sexual partner.  (The case has 20 plaintiffs, only some of whom are lesbian or gay couples.  Creatively, the ACLU included a number of other parties who are not gay or lesbian couples, yet whose rights are affected by Act 1: several married heterosexual couples who have relatives or friends disqualified by Act 1 who they want to adopt their children if they die, and a heterosexual woman who wants to be a foster or adoptive parent but can’t because she lives with her partner of five years.  The court didn’t address the injury these other plaintiffs suffer as a result of Act 1.)

In finding Act 1 unconstitutional the court built on its 2002 decision that found Arkansas’ sodomy law violated a fundamental right to privacy that  “protects all private, consensual, noncommercial acts of sexual intimacy between adults.”  In light of this principle, the court considered whether Act 1 unconstitutionally burdened a privacy right secured by lesbians and gay men in the sodomy law case.  As the court saw it, the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children.  This is what we in the law business call an “unconstitutional condition”: the state can’t condition a right or benefit on terms that would be unc0nstititional if done directly.

Invalidating the law in this way presented a problem for the court that they couldn’t ignore.  In previous cases, the Arkansas Supreme Court has upheld non-cohabitation clauses in custody and visitation agreements.  By this I mean, agreements after a couple separates that custody of or visitation with the children will be conditioned upon the parents not cohabitating with a new sexual partner.  The court had previously upheld these kinds of conditions on the ground that they were in the best interests of the children.  If non-cohabitation agreements didn’t burden the privacy rights of a parent seeking custody or visitation, why weren’t they a permissible limitation on adoption or foster parenting?   The court considered this point and, in my view, kinda fudged.  They said that a non-cohabitation clause in custody and visitation agreements is always considered on a case-by-case basis whereas Act 1 imposed a blanket ban.  Well, either there’s a right at stake here or not – it’s not like the court in Cole did an individualized determination of whether the cohabitation of the particular plaintiffs in the case deserved protection under the state’s privacy law.  Rather, the court invalidated the restriction on extra-marital cohabitation tout corps.  So, the case-by-case loophole for the custody and visitation rules doesn’t really hold water.

This is a great case, and it’s not just a victory for gay men and lesbians in Arkansas who would like to adopt or be foster parents.  The case is a victory for unmarried cohabitators whatever their sexual orientation.

This strikes me as the next horizon we should be paying attention to now that same-sex couples are increasingly able to marry: marital status discrimination.  Sure, it’s not right that same-sex couples who want to marry are not allowed to.  But once they gain the right to marry, they shouldn’t be forced to marry in order as a condition of parenting, adopting, and receiving a broad range of social benefits.

Cudos to the ACLU for framing the case the way they did, and for winning it so expansively.

Here’s the complaint in the case, here’s the Arkansas Supreme Court’s decision.