Ordinarily, it is foolhardy to predict how seven justices will come down on any disputed question of law, but no one could have been the least surprised when the Arkansas Supreme Court on Thursday struck down Initiated Act No. 1 of 2008, which forbade the state from letting cohabiting adults adopt children or serve as foster parents.
A group called the Arkansas Family Council had written the act and got it on the ballot in 2008 in the hope that it would prevent gay and lesbian couples from adopting children or serving as foster parents for children who had become wards of the state. Believing that it might make the act constitutional, the group threw in a proviso that heterosexual couples who were not married couldn’t adopt or be foster parents either. Voters approved it in the 2008 election.
Circuit Judge Chris Piazza, the law-and-order former prosecutor, held the act unconstitutional last year, and the Supreme Court, all elected by the people, unanimously upheld his decision. Even the two new justices, both elected last year with the support of conservative “family values” groups, joined the rest in striking down the act because it unconstitutionally required government agencies to invade the privacy of individuals and enforced the act’s authors’ narrow and unproven views of what was best for neglected children. Justice Karen Baker had defeated Judge Timothy Fox, whose decision in a similar case nine years ago enraged the Family Council, which worked hard for Baker. But she joined the rest of the court in striking down the law.
She had little choice, unless she wanted to flout established law, which conservative judges are loath to do. Ten years ago, the Arkansas Supreme Court struck down the state’s 25-year-old sodomy law, which criminalized homosexual behavior. Bedroom behavior among adults was none of the government’s business, the court said. Both federal and state constitutions grant privacy to individuals from a prying government. In five elections since then, the voters have punished not one of the justices who rendered that decision, although the two justices who dissented on technical grounds have since left the court.
Four years ago, the Supreme Court unanimously upheld Fox’s ruling in 2005, which overturned a state policy dictated by Governor Mike Huckabee that banned households with a gay adult in the house from serving as foster parents for neglected, abandoned and abused children. Privacy rights forbade such a policy, the court said.
So the Family Council decided to put that agency policy into a state law, thinking that it would have a stronger legal premise than the mere rules of a state agency, even if the governor dictated them. But neither an agency’s rules or a legislative or initiated act overpowers the Constitution.
Justice Robert L. Brown spelled out both the law and the overwhelming common sense that governed the issue. The state Department of Human Service and the trial courts should be left alone to examine the circumstances of each case and determine what is in the best interest of a child who desperately needs a home, he said.
If the law tells the state agency or the courts that they cannot put a needy child into an unmarried couple’s custody, either by adoption or foster care, without first determining if there is sexual activity between the adults, that requires an impermissible invasion of the couple’s privacy.
The Family Council said its aim was not primarily to try to prevent a gay couple from adopting a child, but unmarried heterosexual couples. In either case, the Supreme Court said, those decisions must be left to those who are in the best position of determining the best available home for the child. A blanket denial of whole groups of people isn’t constitutional, and it is unfair to children who need a good home, even if it is not the world’s most perfect home.
The state has 1,600 children who are wards of the state and need homes. Striking down this mean act, however well intended its authors might have been, won’t give all of them good homes, but it will help many of them. That is what all of us should want.
One of the plaintiffs, represented by the American Civil Liberties Union of Arkansas, was a grandmother who wanted to adopt and rear her grandchild in Oklahoma who had been severely abused by her parents. The state had removed the child from the home after it was discovered that the parents had broken the infant’s ribs. No other relative wanted to raise the child but she and her partner did. But because she was in a lesbian relationship, the law forbade it.
The Family Council’s director said they would next draft an amendment to the state Constitution legalizing such bans, putting them out of reach of the Arkansas courts. But that will lead only to still more futile litigation. The Arkansas Constitution’s rights have been based on the federal Bill of Rights since 1868. It will mean that an appointed federal judge instead of Arkansas’ elected judges will strike down the law based on the federal Bill of Rights.
Bigotry is persistent.
