Arkansas Trial Judge Declares Adoption Restrictions Unconstitutional

Pulaski County Circuit Judge Christopher C. Piazza issued an order on April 16 in Cole v. Arkansas Department of Human Services, No. 60CV-08-14284, holding unconstitutional Initiated Act I of 2008, an Arkansas measure approved by voters that was mainly aimed at blocking adoptions of children by gay people. Although the judge found that the measure could not be invalidated under the federal constitution, he concluded that broader protection for individual rights under the Arkansas constitution required that the act be struck down.

Also known as the "Arkansas Adoption and Foster Care Act of 2008," the initiative measure was proposed by social conservatives who were upset that the Arkansas Supreme Court had invalidated a regulation that was intended to ban gays from adopting children, in DHS v. Howard, 367 Ark. 55 (2006).. That court had found that administrative adoption of the regulation violated separation of powers under the state constitution, but it was careful not to indicate its views directly about whether the regulation violated the due process or equal protection rights of gay people in Arkansas.

The 2008 initiative was proposed by the "Family Council Action Committee," which sought to enact a broader ban in line with its "traditional family values" agenda. The measure states: "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 cohabiting with a sexual partner outside of a marriage which is valid under the constitution and laws of this state. The prohibition of this section applies equally to cohabiting opposite-sex and same-sex individuals. The public policy of the state is to favor marriage, as defined by the constitution and laws of this state, over unmarried cohabitation with regard to adoption and foster care. The people of Arkansas find and declare that it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage." It was overwhelmingly approved by the voters, and this challenge was immediately filed by the American Civil Liberties Union (ACLU).

Judge Piazza divided his opinion into two parts, addressing first the federal constitutional claim and then the state constitutional claim.

"Under federal law," he wrote, "this case involves no fundamental right and no suspect class is implicated. Therefore, Initiated Act I will be upheld if it is rationally related to a legitimate governmental purpose." He concluded that the state had "argued several legitimate governmental purposes including the theory that cohabiting environments, on average, facilitate poorer child performance outcomes and expose children to higher risks of abuse than do home environments where the parents are married or single." Piazza found that "this constitutes a legitimate governmental purpose," and thus granted the state’s motion to dismiss the constitutional claim.

This conclusory discussion of federal constitutional law was alarmingly short on analysis, and took no account of recent rulings that have suggested that policies motivated by anti-gay animus might be subjected to higher scrutiny. But the court’s treatment of the state constitutional claims makes up for this deficiency.

Citing Jegley v. Picado, 349 Ark. 600 (2002), an Arkansas Supreme Court decision that struck down the state’s sodomy law several years before the U.S. Supreme Court reached a similar result in 2003 in the Texas sodomy case, Lawrence v. Texas, Piazza asserted, "Our Arkansas Supreme Court has ruled that there is a fundamental right to privacy in the Arkansas Constitution that protects ‘all private consensual, non-commercial acts of sexual intimacy between adults.’" Piazza quoted Arkansas Supreme Court Justice Annabelle Clinton Imber, who wrote in the 2002 decision that the Arkansas courts had "recognized protection of individual rights greater than the federal floor in a number of cases," and Jegley is a notable addition to that list.

"Initiated Act I prohibits cohabiting same-sex couples and heterosexual couples from becoming foster or adoptive parents," Piazza continued. "It does not prohibit them from becoming adoptive or foster parents if they do not cohabitate. However, the Act significantly burdens non-marital relationships and acts of sexual intimacy between adults because it forces them to choose between becoming a parent and having any meaningful type of intimate relationship outside of marriage. This infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas."

Here was where Piazza found a crucial difference between federal and state constitutional law. The U.S. Supreme Court has not yet explicitly stated that there is a fundamental privacy right covering intimate adult relationships, although some legal analysts have argued that this is the most accurate interpretation of the obscurely-worded opinion by Justice Anthony M. Kennedy in Lawrence. On the other hand, the Arkansas Supreme Court did use such language in striking down that state’s sodomy law under the state constitution prior to the Lawrence decision. Once a fundamental right has been identified, any state policy burdening that right is subjected to a more demanding level of judicial review.

Thus, although Judge Piazza had found, in his discussion of federal law, that the challenged statute "is supported by rational grounds, which are sufficient to resolve the federal claims in this matter, it is especially troubling that one politically unpopular group has been specifically targeted for exclusion by the Act."

"Due Process and Equal Protection are not hollow words without substance," Piazza wrote. "They are rights enumerated in our constitution that must not be construed in such a way as to deny or disparage other rights retained by the people," citing Article 2, Section 29 of the Arkansas Constitution. "I find that Initiated Act I is unconstitutional."

While not ideally detailed in its reasoning, Judge Piazza’s ruling rests on the apparent conclusion that the theory of child development used to rebut the federal challenge was not sufficient to withstand the heightened scrutiny that applies to a burden on a fundamental right. In order to prevail, the state would have to show that there is some sort of empirical support for the contention that households headed by unmarried adult couples are demonstrably inferior settings to raise children, and that a categorical exclusion from eligibility would be necessary to achieve the state’s legitimate goal of providing suitable settings for raising adoptive or foster children. This would be quite difficult for the state to do, since professional associations in the field of child development have all agreed that the same-sex couples who adopt children or serve as foster parents achieve results on average equal to or better than married couples on various measures of child development, and such associations routinely submit amicus briefs documenting this with numerous studies published in professional journals.

The state will probably appeal this decision, but the trial judge’s ruling makes a good start to the case. Ultimately, either the state government will have to agree to end this misguided policy, or the state Supreme Court will have to get off the fence and address the merits, which it so deftly avoided doing in its 2006 ruling striking down the discriminatory regulation.