Arkansas Supreme Court Confirms that Anti-Gay Adoption Ban is Unconstitutional
April 7, 2011 by Sarah Warbelow, Legal Director
Today the Arkansas Supreme Court ruled that Act I, the state’s ban on adoptions by unmarried couples, is unconstitutional. Approved by voters in 2008, Act I prohibited adoption and foster parenting by unmarried individuals cohabiting with a sexual partner. This banned adoption or foster care by any unmarried couple, regardless of sexual orientation.
The lawsuit was filed in 2008 by 29 adult and child plaintiffs who were harmed by the ban and were represented by the American Civil Liberties Union. Today’s decision affirms an April ruling by a lower court judge that the adoption ban intruded on privacy rights guaranteed by the Arkansas Constitution. Arkansas previously struck down its anti-sodomy law as violating the right to privacy and today’s ruling confirmed that restricting unmarried individuals’ right to adopt children based on their marital status unlawfully burdened their right to privacy in their intimate conduct. Proponents of Act I argued that the best interests of children were served by the ban. The Supreme Court flatly rejected this argument because Act I “provides for no such individualized consideration or case-by-case analysis in adoption or foster-care cases and makes the bald assumption that in all cases where adoption or foster care is the issue it is always against the best interest of the child to be placed in a home where an individual is cohabiting with a sexual partner outside of marriage.”
Today’s victory leaves Mississippi and Utah as the only states with legislative adoption bans for same-sex couples. In another sign of progress, Florida’s ban on adoptions by gays and lesbians was declared unconstitutional by a state court in September. Currently the Virginia State Board of Social Services will decide in the coming weeks whether to enact regulations proposed by former Governor Kaine that would prevent discrimination based on marital status by child welfare agencies in the adoption process. Governor Bob McDonnell has until April 16 to make a formal recommendation to the State Board of Social Services and has said publicly he is against the regulations. HRC has called on the Governor and the State Board of Social Services to enact the regulations.
A map detailing adoption laws across the country is available at: http://www.hrc.org/documents/parenting_laws_maps.pdf
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