LITTLE ROCK — An attorney for a Little Rock psychiatrist who endorses the ban on allowing unmarried couples to be foster parents or adopt children said he’s optimistic the Arkansas Supreme Court will accept supporting arguments from his client - despite a previous rejection - now that the justices have allowed similar filings from several groups who oppose the prohibition, Initiated Act 1 of 2008.
The high court, poised to consider an appeal of the ruling overturning the voter-approved ban, could decide on Dr. Roger Hiatt’s request at its Thursday session.
Another issue pending before the high court that could be decided Thursday is a request for the justices to allow oral arguments. A decision on the constitutionality of the ban is not expected for months, but scheduling oral arguments would offer a tentative time frame to expect a ruling.
Attorney Dan Greenberg said the Supreme Court rejected Hiatt’s first attempt to submit a supporting brief without saying why. Hiatt has publicly spoken out in favor of the restriction on unmarried cohabiting couples in an appearance before the Department of Human Services and has led a demonstration to support the ban. Voters approved the restrictions in November 2008 with 57 percent of the ballot.
A group of parents, children, unmarried couples and grandparents, organized by the American Civil Liberties Union, immediately sued, winning a narrow victory before Circuit Judge Chris Piazza in April. Piazza rejected13 of the group’s challenges, agreeing with only the single argument that the law violates the Arkansas Constitution by discriminating against people because of their sexual practices. That discrimination is illegal, Piazza ruled, in the face of a 2002 Arkansas Supreme Court decision that recognized a right to privacy for all “consensual noncommercial acts of sexual intimacy between adults.”
The Arkansas attorney general’s office and the Arkansas Family Action Committee are appealing the ruling, while the ACLU is contesting Piazza’s decision to throw out its other challenges.
Hiatt petitioned the high court to accept his filing, known as an amicus curiae, or friend of the court, brief in September. The court rejected the brief, which is endorsed by nine other Arkansas physicians and psychiatrists, the next month. Greenberg resubmitted the arguments earlier this month after the Supreme Court accepted a trio of briefs supporting the ACLU appeal presented by national and state child and adoption advocacy groups, a homosexual-rights organization along with a consortium of Arkansas law school deans and professors.
“It’s possible they will accept these,” Greenberg said. “I feel since the Supreme Court has agreed to accept these others, I have a reasonable chance.”
Amicus briefs don’t necessarily have to address the legal aspects of the case, but can also offer professional opinions and scientific studies to help the justices decide the case. There’s no guarantee that the high court will consider any of the filings, even if the justices allow them.
Hiatt’s filing is based on the professional opinions of the participating doctors backed by scientific studies and a review of laws in other states and countries.It claims “overwhelming” social science research and the judgment of experienced professionals and professional organizations support the law’s preference for adoption and foster placement by married and single applicants over unmarried cohabitation couples. Act 1 reflects the mainstream of adoption law among the states and parallels the adoption policies of other nations, Hiatt maintains.
“Arkansas is not alone in excluding unmarried, cohabiting couples from the foster care and adoption systems; many other states have acted similarly. Currently, 32 states clearly prohibit adoption by same-sex partners, 9 by recent or implied policy decisions and 23 by continuation of historic adoption standards. The restrictions on placement contained in Act 1are a legitimate, scientifically supported effort to ensure that the placements offer the best chance of continued safety and security for the child,” the filing states. “Although Act 1 as applied raises difficult policy concerns, its focus on the regulation of the child’s home environment places it squarely within the state’s charge to act for the welfare of children. It is essential that this protection be in place. Children in foster care are especially vulnerable, and research indicates that their placement with unmarried, cohabitation partners increases the risk that their lives will be disrupted or even that they may be injured again.”
One filing opposing the ban comes from advocates including Arkansas Advocates for Children and Families, the Arkansas chapter of the American Academy of Pediatrics, the Arkansas Psychological Association, the Center for Adoption Policy, the Child Welfare League of America, and the National Center for Adoption Law and Policy. The group claims Act 1 is a “striking departure” from well-established child welfare policy, a field that “universally” recognizes that family placements are better for children than institutions, particularly in a state that has a “massive and chronic” shortage of adoptive and foster parents.
Child-welfare decisions should be case by case, not demographic averages that don’t reflect an individual’s suitability to parent a child, the group claims, warning that a categorical ban on same-sex or unmarried heterosexual couples has no scientific basis and is detrimental to the health, safety and welfare of children in state custody.
“Arkansas law, federal law and a wealth of child welfare expertise agree that adoption - or when not possible, temporary placement with a foster family rather than in an institution - should be the goal of all children who cannot be raised by their biological parents. Child welfare experts further agree that categorical exclusions, such as Act 1’s ... are harmful to the best interests of children in state custody because they needlessly limit the pool of adoptive and foster parents, thus exacerbating the massive shortfall of available placements and making it even more difficult to match children in need of homes with willing and appropriate families,” the filing states. “Child welfare experts and the child welfare agency defendants confirm that there is no child welfare basis for categorically banning unmarried couples from fostering or adopting - whether they be gay and lesbian or heterosexual cohabiting couples. Lesbian and gay parents are also more likely to adopt difficult-to-place children, including those with physical and mental handicaps.”
The briefs by the group of Arkansas law school professors and the Lambda Legal Defense and Education Fund focus on the federal and state constitutional issues. The law professors urge the high court to uphold Piazza’s ruling, arguing that the Act 1 ban unconstitutionally penalizes adoption/foster applicants by forcing them to expose their sex lives.
“Act 1 burdens the right to privacy of adults cohabiting in an intimate relationship with an unmarried partner. Indeed, Act 1 penalizes the exercise of this fundamental right. If the couples barred by Act 1 choose to exercise their fundamental right to privacy, the state can no longer consider them eligible to be foster or adoptive parents. This penalty is unavoidable for same-sex couples who cannot marry under Arkansas law. Penalizing the exercise of a fundamental right is itself unconstitutional,” the professors’ brief states. “Act 1 burdens the ability of these couples to engage in a significant expression of their sexual intimacy. Fundamental personal relationships include the intimate relationship an adult has with a romantic partner and that of parent and child.”
Arkansas, Pages 19 on 11/28/2010