LITTLE ROCK The Arkansas Supreme Court has upheld a lower court ruling that said voter-approved adoption restrictions on unmarried couples who live together were unconstitutional.
The state's high court on Thursday released its opinion unanimously affirming a Pulaski County circuit judge's ruling last April that Initiated Act I of 2008 intrudes on privacy rights guaranteed by the Arkansas Constitution.
"The State's compelling interest, no doubt, is protection of the welfare of Arkansas's children, but we further hold that under a heightened-scrutiny analysis, which is the standard that applies to this case, the least restrictive means of serving that interest has not been employed," Associate Justice Robert L. Brown wrote in the 25-page opinion.
Proponents of Act 1 said it ensured children in state custody were placed in the safest homes while opponents argued it unfairly and illegally prohibited gay and other unmarried couples in sexual relationships from adopting.
Brown wrote that individualized assessments by the Department of Human Services and courts are effective in identifying issues with would-be adoptive parents. He said that method was the "least restrictive" and in the best interest of Arkansas's children rather than a blanket ban like Act I.
"By imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the State and our courts to conduct these individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents," Brown wrote.
Jerry Cox of the Family Council, which worked to pass Act I, called the ruling the worst decision the Supreme Court has made and a "slap in the face" to Arkansas voters. He said his organization was considering a constitutional amendment or legislation to bring the adoption rules back into effect while noting an appeal in federal court is possible but unlikely.
"Today the Arkansas Supreme Court put the rights of adults way ahead of the welfare of children," Cox said.
The American Civil Liberties Union, which represented , issued a statement praising the court's decision.
“This ruling is a relief for the over 1,600 children in the state of Arkansas who need a permanent family," Rita Sklar, executive director of the ACLU of Arkansas said. "The state admitted good families would be banned by this law, and that we have a critical shortage of homes. This ban wouldn’t even allow a relative – gay or straight – to foster or adopt a child with whom they had a close relationship, so long as that relative was unmarried and living with a partner. The court clearly saw that this ban violated the constitutional rights of our clients and thousands of other Arkansans.”
The law approving Act I passed by 57 percent of Arkansas voters in November 2008.
Read tomorrow's Arkansas Democrat-Gazette for full details.
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