ACLU Challenges Arkansas Foster/Adoption Statute

The Arkansas Civil Liberties Union and the ACLU LGBT Rights Project have filed suit in state court challenging the federal and state constitutionality of Act 1, a measure enacted by referendum on November 4 and slated to go into effect January 1, 2009, which prospectively bans foster or adoptive placements with unmarried adult cohabitants, regardless of gender.

The complaint filed on December 30 in Cole v. State of Arkansas was brought on behalf of a varied group of unmarried couples and parents.  The heart of the complaint is really the section describing the plaintiffs and their interest in the case.  This makes clear that Act 1 impermissibly interferes with family autonomy in drastic ways.  For example, it disqualifies a woman from seeking to adopt her battered granddaughter, even though the state has removed the child from the custody of its parents, because grandma is cohabiting with another woman.  It prohibits parents from effectively designating relatives to take over as adoptive parents in case anything happens to the parents if those relatives are living in unmarried cohabitation relationships. 

The genesis of Act 1 was right-wing unhappiness with a 2006 Arkansas Supreme Court decision that had struck down a regulation disqualifying gay people from being foster parents.  In that case, the Court said that the regulation exceeded the child welfare agency's powers because it undermined rather than advanced the statutory policy of requiring that foster placement decisions be made in the best interest of children needing foster care.  The Court was convinced by the trial record in that case that the regulation actually retarded that interest and thus contradicted the statutory policy, because there was no factual basis for disqualifying all gay people as a class from serving as foster parents. 

The malcontents who were upset with this ruling then tried to get state officials to adopt a new regulation disqualifying all unmarried cohabitants, but the regulation was withdrawn after a hearing required by the state's administrative procedure act produced a hearing record that could not plausibly support the regulation if it were challenged in court --- since child welfare professionals in Arkansas were uniformly opposed to it as counter to the best interests of children.  So the malcontents decided to put before the voters a deceptively innocent-sounding statutory initiative to change the state's policy, and they succeeded, to virtually uniform condemnation from the press. 

The lawsuit proceeds on due process and equal protection grounds, as well as making a technical challenge that may itself save the day: the referendum was actually a sneak repeal of a provision in the state's foster care law that prohibits discrimination based on marital status in foster care proceedings, or so the complaint argues.  It seems that the Arkansas constitution requires that any referendum that would repeal an existing statute has to communicate that fact to the voters, but the Act 1 proponents never breathed a word about this in their ballot materials or their propaganda in support of the measure.

This last argument would give the courts an "out" if they wanted to throw out this crazy measure without having to opine very much on the merits of the due process or equal protection claims.  On the other hand, the Arkansas Supreme Court's 2006 decision shows that this is a court that is not shy about taking on irrational family law measures adopted from homophobic motives that make no sense in terms of their impact on children and families.  This lawsuit should have a good chance of succeeding.  The first test will be whether the trial court will enjoin the operation of Act 1 pending a final ruling on the merits, which would require a finding that the case has a good chance of success and that allowing Act 1 to go into effect could cause irreparable injury to the plaintiffs.  In light of the factual recitation in the complaint, these requirements should not be difficult to meet.