As I predicted after watching the oral argument, the Arkansas Supreme Court today struck down Act 1, the initative banning anyone living with an unmarried partner from being a foster or adoptive parent. There was no dissent in the case, Arkansas Dept. of Human Services v. Cole. The court held that the ban violates the fundamental right of the plaintiffs to sexual intimacy in their home.
Because the ban burdens a fundamental right, it could survive only if the state could show a compelling interest and that the ban was the "least restrictive method" of achieving that state interest. Protecting the best interests of children is, of course, a compelling state interest. The court noted that Act 1 says that "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." But, the court noted, numerous employees of the state's child welfare agency, including the John Selig, director of the Department of Human Services, testified that the categorical ban was not in the best interests of children. Selig also testified that "it cannot be determined whether a particular placement is better or worse for a particular child based solely on the marital status of the couple in the home."
The ruling notes that all the arguments for a categorical ban based on generalizations about cohabiting couples could be addressed through the individual screening process to which all foster and adoptive parents are subject. "We have no doubt," the court stated, "that this individual assessment process is a thorough and effective means to screen out unsuitable applicants." You may recall from my earlier post that the lawyers for both the state and Family Council Action Committee argued that the categorical ban was necessary because the screening process makes mistakes. Really. Bet the state social workers loved that one...
The court's faith in the screening process allowed it to differentiate a 2005 custody case between two parents in which the court had stated that extramarital cohabitation is not condoned, does not promote stability for children, and can be a basis for changing custody. A nonmarital partner in a custody case, the court noted, is a "third party stranger" who has not gone through the rigorous screening applicable in the adoption or foster parent setting. Although I get the court's point, and it works to distinguish the prior case, custody cases are also handled individually by a trial judge determining a child's best interests. I'm disturbed that a parent's nonmarital sexual relationship could result in a change in custody. It's true this factor is not a categorical ban to post-divorce custody, but I would have been happier if the court had just said that custody cases are scrutinized individually and so adoption/foster parenting situations should be handled in the same way.
A few other thoughts. The court found a fundamental right to have a sexual relationship. I love that. It found that denying someone the opportunity to adopt or foster a child for that reason burdened the exercise of that fundamental right. I love that too. But because this triggered "strict scrutiny," the court did not have to decide if the ban would survive the rational basis test. The lower court essentially said the ban was rationally related to achieving the best interests of children but that the state could not meet the higher burden of showing that the ban was necessary. So although I love this articulation of a fundamental right, it should have been unnecessary. The ban should fail the rational basis test. Individual screening means a categorical ban does not serve the interests of children. Period.
Issues related to lesbians and gay men raising children, and unmarried heterosexual couples as well, are ill suited to the ballot box, or even the legislature. The political process allows gross misstatements to reverberate unchecked. It allows prejudice, stereotype, myth, and fear to substitute for reason. In spite of many notable defeats, lesbian and gay parents have fared better in court. Judges care about the well-being of the individual children in front of them. Courts must give real reasons for their rulings. True, state and federal courts upheld the Florida gay adoption ban for decades, and lesbian and gay parents have been denied custody of their children. But lesbian mothers also won custody in some courts 40 years ago, and second-parent adoptions began almost 30 years ago because judges wanted to do right by children. The Arkansas Supreme Court opinion is in that vein.