Act 1 was dubbed a "gay adoption ban" by critics and some segments of the media, but it actually prohibited adoptions and foster care by all non-married couples, heterosexual and homosexual. After 57 percent of Arkansas voters approved it in 2008, the American Civil Liberties Union (ACLU) filed suit on behalf of a lesbian couple and other Arkansas citizens.
Supporters said the law was based on common sense as well as studies showing that children, on average, fare best when raised with a married mother and father.
Mississippi and Utah remain the only states with laws prohibiting adoptions by all cohabitating couples. Fifteen states -- mostly in the Northeast, Midwest and West Coast -- allow homosexual couples to adopt jointly, according to the Human Rights Campaign, a homosexual organization. The rest of the country has a patchwork of laws, some of them not so clear. Some states allow second-parent adoptions by homosexual couples -- that is, an individual can adopt a child and then allow a partner later on to become a second parent via adoption.
The Arkansas ruling was unanimous, and while technically limited to the state, could help persuade other courts that are considering the issue. Courts sometimes look outside their jurisdictions for legal guidance. For instance, the 2003 landmark decision by Massachusetts' high court legalizing "gay marriage" was cited by other state high courts that subsequently did the same.
"This can impact other states, and I am sure courts will take notice," Byron Babione, an attorney with the Alliance Defense Fund, told Baptist Press. ADF represented the Arkansas Family Council Action Committee, Act 1's sponsor. "There is no doubt a political movement afoot to undermine and destroy marriage as we know it, and to eradicate protections that are in place for children when those protections conflict with adult sexual desires.... This lawsuit was part of a campaign to place adult wants and desires over the best interests of children."
Arkansas Associate Justice Robert Brown, in his 26-page decision, said the court's 2002 Jegley v. Picado decision overturning anti-sodomy laws bound the court to strike down Act. 1.
"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, should they choose to cohabit with their sexual partner," Brown wrote. "The pressure on such couples to live apart, should they wish to foster or adopt children, is clearly significant.... In the case before us, the burden dispensed by the State is either to remove the ability to foster or adopt children, should sexual partners live together, or to intrude into the bedroom to assure that cohabitors who adopt or foster are celibate. We conclude that, in this case as in Jegley, the burden is direct and substantial."
Babione, though, said the court's interpretation of the anti-sodomy case is skewed. Adoption, he said, is not a fundamental right.
"All Act 1 does is it requires, in the best interests of children, to place foster and adoptive children in the homes with a married mother and father," Babione said. "The law does not proscribe anybody from engaging in any sexual activity. It doesn't punish them criminally, and it is not a law that authorizes the police to go into your home and see whether or not you're engaging in sexual acts."
Jerry Cox, president of the Arkansas Family Council Action Committee, called it the "worst decision ever" by the court.
"This is a classic example of judicial tyranny," Cox said in a statement. "We have said all along that Act One was about child welfare, and fifty-seven percent of the voters in 2008 agreed. They declared that the State of Arkansas has an obligation to adoptive and foster children to ensure that they are placed in the best possible homes. The Arkansas Supreme Court has chosen to run roughshod over the people's will and refused to uphold a good law that protected the children in the state's care."
A 2003 study for the nonprofit Center for Law and Social Policy cited data showing that the average cohabiting union lasts only two years. The same study showed that cohabiting relationships that do result in marriage have a "much higher" divorce rate than that of couples who do not live together before marriage.
"Children living with cohabiting parents -- even if the parents later marry -- are thus likely to experience considerable instability in their living situations," the study concluded.
The social science on family stability, Babione said, is clear.
"This decision basically says now that you can go shack up with your boyfriend or girlfriend and that if you decide that you want to play house and have kids, the state has to allow you to come in and seek a child," Babione said. "What the state was doing was saying, 'We have limited resources, and want to focus them on low-risk groups for children' -- that is, married mothers and fathers, where children tend to do better.... What the Supreme Court is saying is, 'No, you have to take your limited resources and you have to expend them on high-risk groups for children.' It's mind-boggling that we've come to a point in our society where you have a state Supreme Court basically saying that adult sexual desires and wants are the chief end of civil government at the expense of the best interests of children."
Michael Foust is associate editor of Baptist Press. The court's ruling is available online at http://bit.ly/fwsQvh.
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