The law banning unmarried couples from adopting children and being foster parents doesn’t specifically bar homosexuals, but a judge said Thursday that appears to be the key result.
Circuit Judge Chris Piazza said he will rule on whether a challenge to the voter-approved law by a group of families will go to trial sometime before the scheduled May 10 start date.
Lawyers for the state attorney general’s office and the Arkansas Family Council urged Piazza to dismiss the suit without trial. Attorneys from the American Civil Liberties Union, representing the families, argued that the law should be overturned.
Assistant Attorney General Joe Cordi argued that studies show that children with cohabiting unmarried couples are more likely to suffer abuse or be killed than those living with their married biological parents.
“It provides a sound, rational basis” for upholding the law, Cordi said.
Stacy Friedman, the ACLU attorney for the families, said that argument didn’t apply, since the children in need of adoptive and foster parents had already been removed from their biological parents — often after severe abuse.
“There is no reason to exclude this group. It’s not rational,” Friedman said.
The state has about 1,600 children at any one time in need of foster or adoptive families. Friedman said the ban blocks those children from becoming a part of good, loving homes.
“That shocks the conscience,” Friedman said.
Byron Babione, an attorney for the Alliance Defense Fund, which is representing the Family Council, said the law does not “shock the conscience” and said the state should not have to “concentrate on evaluating settings that we know are more likely to produce unfavorable results.”
Cordi told Piazza that the Arkansas Department of Human Services is overworked and understaffed. Eliminating unmarried couples, he said, “remove(s) the burden from DHS of having to screen” that group.
Piazza noted that homosexuals can’t marry in Arkansas, and thus can’t adopt.
“Isn’t that the thrust of this act?” the judge asked Cordi.
Cordi replied that the law applies to heterosexuals and homosexuals alike, and that the case isn’t a challenge of the state law prohibiting gay marriage.
The ban on adoptions and fostering does allow unmarried couples to act as guardians — something Friedman said was “almost like a separate but equal argument.” She noted that state policy requires guardianship not be granted to someone who would not be able to adopt the child.
Rather than treating unmarried couples as an “unwashed group,” Friedman said the couples who want to foster or adopt should be recognized as “people who have decided to make a commitment.”
Adoptive parents can bring children under their health insurance, and children can receive Social Security benefits if their parents die. None of that is available if the person is only a guardian, Friedman said.
“This is why it’s a public interest issue,” she said.