The ACLU went before the Arkansas Supreme Court last week to argue in support of a lower court ruling overturning a 2008 ban on unmarried cohabiting couples adopting or fostering a child.
The ban, enacted in November 2008 when California saw its gay marriage ban approved by voters, is called Act 1 and was part of a religious-conservative push to further bolster what they perceive as the traditional family, that being one man and one woman married and raising children.
Act 1 brought about an immediate court challenge from the American Civil Liberties Union (ACLU) on the grounds that it violated both the state and federal constitution.
A state circuit court duly overturned Act 1 in April 2010. The court found the law violates the Arkansas Constitution — but it dismissed plaintiffs’ claims that the law also violates the United States Constitution.
The state has appealed this decision before the Supreme Court with lawyers for the defense arguing that non-traditional families, that is to say same-sex couples or unmarried cohabiting straight couples, are more likely to put children at risk and that a child’s welfare could be harmed by placing them with said adoptive/foster parents.
Lawyers also argued the law follows the status quo of laws in Arkansas, citing the gay marriage ban the state has enacted.
The ACLU rallied against this, saying that because the law does not prevent single people from adopting or fostering it is unconstitutionally targeting specific groups of people and denying them the right to adopt or foster based solely on an interpretation of religious views that does not in fact translate into solid fact with regards to child welfare or child rearing.
LITTLE ROCK- The American Civil Liberties Union and the ACLU of Arkansas appeared before the Arkansas Supreme Court today to defend a lower court’s ruling striking down a law that bans any unmarried person who lives with a partner, including those in same-sex relationships, from serving as an adoptive or foster parent. In April, the Pulaski County Circuit Court found that the law, known as Act 1, did not serve the state’s interest in determining what is best for children. The state of Arkansas appealed the circuit court’s ruling.
“There are over 1600 children in the state of Arkansas who need a permanent family. This law bars qualified couples from providing these children a loving home,” said Rita Sklar, Executive Director for the ACLU of Arkansas. “For the sake of Arkansas’ children, the court should let the ruling stand and end this discriminatory ban.”
The ACLU filed its complaint against Act 1 in December 2008. Plaintiffs participating in the case include three teenagers in state care who are awaiting placement with a foster or adoptive family, a lesbian couple who adopted an Arkansas foster child before Act 1 was passed and would like to open their home to another special-needs child, a grandmother who was barred by Act 1 from adopting her own grandchild and several married heterosexual couples who are prohibited by Act 1 from arranging for certain friends or relatives to adopt their children if they die or become incapacitated.
“This law denies loving homes to Arkansas’ most vulnerable children and presents a completely inappropriate intrusion into the relationships of families who lack the freedom to designate who should care for their children if something should happen to them,” said Christine P. Sun, senior counsel with the ACLU Lesbian Gay Bisexual and Transgender Project. “This ban hurts families, and the court must affirm the ruling striking it down.”
Act 1 does not prevent single people who live alone from adopting or fostering children in Arkansas, and does not bar unmarried cohabiting couples from serving as guardians. The ACLU’s brief states that the law serves no purpose other than to exclude qualified foster and adoptive applicants, with a particular unfounded and unlawful prejudice against same-sex couples. The ACLU’s brief points out that the Arkansas Supreme Court, ruling in a 2006 case that struck down a law explicitly banning gay people from serving as foster parents, found that there is absolutely no connection between a person’s sexual orientation and their ability to parent.
Earlier this month U.S. Senator Kristen Gillibrand indicated that she is currently working on federal legislation that would prevent same-sex couples and single gay people being prevented from adopting and fostering children solely on the basis of their sexual orientation.
Senator Gillibrand would not be drawn on when she will introduce that legislation, but did indicate that counterpart legislation would also be on the agenda in the U.S. House. For more information on this, please click here.