When a lawsuit challenging the initiated act that outlaws adoptions and foster parenting by unmarried couples was assigned last year to Circuit Judge Chris Piazza, the religious groups pushing the law had to be happy. Piazza, an old prosecutor, is known as a no-nonsense, law-and-order judge who never tries to break new ground.
But they were not so happy yesterday. Judge Piazza ruled that the act was unconstitutional because it infringed upon the privacy of individuals and punished a group of people who happened to be unpopular, gays and lesbians.
Judge Piazza was right, but for more reasons than the narrow ones that he cited. The real beneficiaries of his decision are not gays and lesbians and other unmarried couples who want to adopt or rear a foster child but the abandoned, neglected and brutalized children who had no chance to have a nurturing home. Now, many more of them will.
The issue has bedeviled Arkansas for a half-dozen years since the Human Services Department under Gov. Mike Huckabee declared that same-sex couples were unsuitable parents and forbade them from fostering or adopting needy children, even though hundreds of children were going unloved or else warehoused in uncaring homes where couples fostered them for the small cash assistance they received. When the courts struck down that prohibition as exceeding the state’s power under statutes, the Arkansas Family Council came back with an initiated act in 2008, which the voters approved. The sponsors sought to avoid the discrimination issue by banning both same-sex couples and cohabiting heterosexuals from being parents.
Judge Piazza destroyed the argument rationally. Arkansas courts have long recognized a right to privacy under the Arkansas Constitution that is more certain than the privacy doctrine ascribed to the U. S. Constitution. The Arkansas Supreme Court had ruled that the privacy right protected all private, consensual and noncommercial acts of sexual intimacy between adults — that is, all consensual adult activity but prostitution.
So under Initiated Act 1, if an unmarried man and woman want to adopt a child or take a foster child, all they have to do is either marry or move apart and they can be adoptive or foster parents, Judge Piazza observed. But a gay or lesbian couple can’t marry and be parents because Arkansas law forbids their marrying. Judge Piazza found it troubling that the act targeted one politically unpopular group for exclusion from being parents.
Yes, but both sides in the dispute agreed on one question and so do we. The welfare of needy children is a legitimate concern of the state government. The Family Council insisted that those children could only be helped by limiting their parents to married heterosexual couples. Never mind that there is a shortage of such families, caring and suitable ones anyway, who want to adopt troubled and disabled children or serve as foster parents. Although Judge Piazza ruled in their favor on the federal claims, the defenders of the law could not prove that gay and lesbian couples or other unmarried couples provided unhealthier home environments than other couples. The preponderant studies actually showed there was no difference in outcomes for children reared by gay and lesbian couples.
The Family Council will appeal the decision to the Arkansas Supreme Court, but no one should have any doubt about the outcome there. All the precedents of the past two decades suggest that the justices will put this ill-considered law out of its misery and give these desperately needy children a small lease on a happy life.
