Arkansas high court strikes down voter-approved homosexual adoption ban

by Peter Jesserer Smith

LITTLE ROCK, Arkansas, April 7, 2011 (LifeSiteNews.com) – Arkansas’s state Supreme Court on Thursday struck down a voter-approved initiative passed in 2008 that forbade unmarried couples, including homosexuals, from adopting or fostering children.

The Arkansas Supreme Court ruled Thursday that Arkansas Act 1, was unconstitutional because it violated the rights of couples engaging in sexual activity to adopt.

Act 1, which voters passed by a 57 – 43 percent margin in November 2008, stated: “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 Act clarified that the prohibition “applies equally to cohabiting opposite-sex and same-sex individuals.”

“Act 1 directly and substantially burdens the privacy rights of ’opposite-sex and same-sex individuals’ who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children,” Associate Justice Robert L. Brown wrote for the court’s unanimous opinion in Cole v. Arkansas Department of Human Services.

“We have held in this case that a fundamental right of privacy is at issue and that the burden imposed by the State is direct and substantial,” said Brown. He added that because the law was touching on a “fundamental right,” that its constitutionality did not have to meet a “rational basis test,” but a “heightened scrutiny” test.

“[B]ecause Act 1 exacts a categorical ban against all cohabiting couples engaged in sexual conduct, we hold that it is not narrowly tailored or the least restrictive means available to serve the State’s compelling interest of protecting the best interest of the child.”

But pro-family leaders disagreed, saying they held the state Attorney General’s position that adoption was not a constitutionally guaranteed right.

“The needs of children outweigh the wants of adults. The court’s decision tragically places more importance on the sexual interests of adults than on protecting children,” said Byron Babione, Senior Legal Counsel for the Alliance Defense Fund. The ADF was representing the Family Council Action Committee, which fought to get Act 1 on the ballot and approved in 2008.

“The people of Arkansas believe that children deserve the most safe and stable home possible. They cast their ballots to ensure that children wouldn’t be deprived of the best possible family environment and decisively approved Act 1 for that purpose only, but the court struck down the people’s will anyway,” Babione said.

This is not the first time that the state high court has intervened against the state government’s attempts to restrict adoption and foster-care to traditional two-parent families.

In 2006, the Supreme Court ruled Arkansas could not bar homosexuals from applying to be foster-parents to children, and struck down a 1999 regulation from the state child’s welfare board that was intended to help guarantee children would be placed in homes with a mother and a father.