Arkansas Supreme Court Upholds Overturning Ban on Unmarried Couples Adopting

Thursday saw the Arkansas state Supreme Court uphold a lower court’s decision overturning a 2008 voter-enacted ban on unmarried couples adopting or fostering in the state.

Voters enacted Act 1, a ban on all unmarried couples from adopting of fostering, in 2008 at the same time as California saw its now infamous Proposition 8 gay marriage ban enacted. Act 1 was a de facto ban on same-sex couples rearing children because by state law they can not marry, but the ban’s reach was wider than that and also affected opposite-sex couples in the same way. The ban was quickly challenged in court and was never enforced.

The case, Cole v. Arkansas, had ACLU Arkansas argue that the ban unconstitutionally burdens unmarried couples, same-sex and opposite-sex, from adopting and fostering even while single people are allowed to adopt and foster, undermining the state attorney general’s argument that the ban was to further the traditional marriage agenda in keeping with other bans the state enacted such as a ban on same-sex marriage.

A lower court overturned the ban in April of last year saying that it violated the state’s constitution, though the court rejected that the ban violated the United States Constitution. For more on the history of the case, click here.

The Arkansas Supreme Court agreed issuing an interesting ruling that cites the ban violating the plaintiffs’ right to privacy.

From the Associated Press:

The Arkansas Supreme Court on Thursday rejected a voter-approved initiative that barred gay couples and other unmarried people living together from serving as adoptive or foster parents.

Associate Justice Robert L. Brown wrote for the court that the law would encroach on adults’ right to privacy in the bedroom.

The law “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,” Brown wrote.

Last month U.S. Senator Kristen Gillibrand indicated that she is currently working on federal legislation that would prevent couples and single prospective adoptive and foster partners being discriminated against 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.

Photo used under the Creative Commons Attribution License, with thanks to Nerdcoregirl.


April G.
April G6 years ago

Melanie K. & Pam W.,

I'm reading it the same way you are - the AR Supreme Court upheld the decision to overturn the ban. This is a positive step forward for ALL families to be recognized as a family regardless of marital status, sexual orientation, etc. etc.

Allan Yorkowitz
.6 years ago

Southern stupidity. This is why I am so impressed with Maryland's stand on gay rights.

Yvonne S.
Yvonne S6 years ago

Why on earth it would it matter if a couple were not married? As long as they can provide a happy and loving home for a child that is all that matters.

Doris Mason
Past Member 6 years ago

"To Each His Own"

pam w.
pam w6 years ago

Melanie, I'm "reading it" the same way you for anyone willing to adopt/foster a homeless child. And good for Arkansas (never noted for their compassionate interest in civil rights.)

Denying children homes with loving single or same-sex parents is just cruel and ignorant. Next they'll want to take children from single mothers or widows or widowers.

Melanie K.
Mel;anie K6 years ago

If I am reading this right, the court says that unmarried couples (and I suppose this includes same-sex partners) may foster children. Some here seem to think this is a bad thing. If I am correct, then I applaud the court in thinking of the children first, staying out of people's bedrooms, and giving kids loving homes to live in, even if the people loving them are not married to each other, or, **gasp**, are homosexual!

If I am right, WAY TO GO, JUDGES!!

donald baumgartner


Doyal D.
Doyal D6 years ago

Why oh why do the conservatives put so much effort into limiting people's options when they could do so much good with that time, energy and money and people would be better off.

Lara Nunes
Lara Nunes6 years ago

In today’s world more marriages are ending in divorced and most people who are married only foster children for the $$$$$ and doesn’t do anything for the children. And often times the children are placed in homes where they are abused not loved.

I think if the person is caring and has patience with the children and is open minded and actually encourage the children too better themselves. I don’t see the problem for a single or same sex couples too adopt children. Most children who are abused are from couples who are man and women and Marriage is over rated anyways.

Religion extremists need to keep their beliefs out of the court system. Since, everyone knows in the BIBLE the wife has to OBEY their husband.

Norma V.
Norma Villarreal6 years ago

What is the definition of a family? When it comes to fostering children, can we make sure their needs are met rather than if the partners are legally wed?