In a unanimous opinion handed down on April 7, 2011, the Arkansas Supreme Court invalidated—on state constitutional right-to-privacy grounds—a ban on adoption and foster parenting by unmarried adults who cohabitate with sexual partners.1 Although the law applied to both heterosexual and homosexual couples, the decision has captured public attention largely because of its implications for the latter group.2 This article briefly describes the law, the suit leveled against it, and the Arkansas Supreme Court’s decision in Arkansas Dep’t of Human Services v. Cole.
A. The Law
In November 2008, the voters of Arkansas approved a ballot initiative known as the Arkansas Adoption and Foster Care Act of 2008.3 Taking effect on January 1, 2009, the Act prohibited individuals who cohabitate with a sexual partner outside of marriage from adopting or foster parenting minor children.4 Noting the state’s public policy of promoting marriage, and declaring that “it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabitating outside of marriage,” the Act applied equally to heterosexual and homosexual couples.5
B. The Litigation
Two days before the Adoption and Foster Care Act became effective, a group of plaintiffs filed suit in state court for injunctive relief.6 The group included a lesbian grandmother wishing to adopt her granddaughter (Sheila Cole),7 unmarried couples who wanted to foster or adopt children, adult parents who wanted to designate unmarried couples as the adoptive parents of their children in the event of their death or incapacity, and the biological children of those parents.8 In a thirteen-count complaint, the plaintiffs alleged multiple violations of the federal and Arkansas constitutions. In Count 10, the plaintiffs alleged that the Act violated, among other things, federal and state constitutional rights to privacy by placing an impermissible burden on intimate relationships.9
The State moved to dismiss the complaint, and the Family Council Action Committee (FCAC), an intervening party in support of the Act, filed its own motion to dismiss.10 After discovery, the State, FCAC, and the plaintiffs moved for summary judgment.11 The trial court granted the plaintiffs’ motion on Count 10 and determined that the Act violated the Arkansas Constitution. The court found that the Act “infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas” because it “significantly burdens non-marital relationships and acts of sexual intimacy between adults” and was not narrowly tailored to the State’s goal of protecting the best interests of children.12 The trial court granted the State’s and FCAC’s motions for summary judgment and motions to dismiss on the federal constitutional claims, and it dismissed the plaintiffs’ remaining state constitutional claims because it did not need to decide them.13 The State and FCAC appealed the court’s grant of summary judgment to the plaintiffs on Count 10, and the plaintiffs cross-appealed the court’s grant of summary judgment to the State on the federal constitutional claims.14
C. The Arkansas Supreme Court’s Decision
On direct appeal, the Arkansas Supreme Court affirmed the trial court’s decision in a unanimous opinion.15 Writing for the court, Justice Robert Brown began by briefly acknowledging the presumption of constitutionality accorded the statute.16 In the remainder of his opinion, Justice Brown explained why, in the court’s view, the plaintiffs had rebutted that presumption.
The lynchpin of the court’s decision was Jegley v. Picado,17 a 2002 case in which the Arkansas Supreme Court held that the state’s constitution implicitly guarantees a fundamental right to privacy. The Jegley court invalidated an Arkansas statute that criminalized homosexual sodomy. Although the Arkansas Constitution contains no explicit right to privacy, the Jegley court found that it does guarantee one implicitly and that this fundamental right embraces “all private, consensual, noncommercial acts of sexual intimacy between adults.”18 Jegley directed that laws burdening this fundamental right to privacy receive strict scrutiny, and it found that a ban on homosexual sodomy could not meet that test.19
In the present case, the State contended that the Arkansas Adoption and Foster Care Act did not implicate Jegley’s right to privacy because it related to cohabitation, not sexual intimacy. The State further argued that the Act did not burden the right to engage in sexual intimacy because individuals who cohabitate with a sexual partner outside of marriage remained free under the Act to continue their lifestyle as long as they did not wish to adopt or foster children.20 The court rejected these contentions, observing that the Act did not concern individuals who merely cohabitate, but rather individuals who cohabitate with a sexual partner. The court further reasoned that forcing a choice between the exercise of a fundamental right and a statutory privilege—in this case, sexual intimacy and adoption, respectively—can constitute a burden on the right.21 As its chief support for this proposition, the court enlisted the United States Supreme Court’s decision in Sherbert v. Verner,22 a well-known free exercise case that shielded a Seventh-Day Adventist from a state welfare benefits regime requiring availability to work on Saturdays. The Arkansas Supreme Court analogized the Adoption and Foster Care Act, which required a choice between sexual intimacy and adoption, to the welfare benefits regime in Sherbert, which required a choice between worshiping God according to the dictates of conscience and receiving welfare benefits. The court reasoned that the Act, by forcing such a choice, burdened the right to privacy implicitly protected by the Arkansas Constitution.23
Before deciding whether the burden imposed on the right to privacy was sufficient to trigger heightened scrutiny, the court set out to distinguish the Act from non-cohabitation orders historically permitted in divorce and child custody cases. The court cited two important distinctions. First, cohabitation orders are more narrowly directed toward the state’s interest in promoting the best interest of children because they result from case-by-case determinations, not simply a blanket prohibition.24 Second, the state has a much greater need to shield children from third-party “strangers” who live with divorced parents than it does to shield children from individuals who presumably must undergo extensive pre-adoption and pre-fostering screening.25
Having determined that the Adoption and Foster Care Act burdened the right to privacy implicit in the state constitution, the Arkansas Supreme Court found that the burden was severe enough to trigger the strict scrutiny test mandated by Jegley. The court reasoned that forcing a choice between sexual intimacy and adoption or fostering “is not appreciably different from [the burden] imposed by the criminal [sodomy] statute in Jegley,” as both laws would ultimately require state investigations in the bedroom.26 According to the court, forcing the plaintiffs to choose between their fundamental right to extramarital sexual intimacy and the privilege of having children by adoption or fostering was enough of a burden to trigger Jegley’s heightened scrutiny test.
The court concluded that the Arkansas Adoption and Foster Care Act could not meet the rigorous narrow-tailoring requirement of strict scrutiny. The court acknowledged that Arkansas’ goal in enacting the statute—protecting the state’s children and their best interests—was compelling.27 But the Act’s blanket ban cast too wide a net, the court explained. The court began by noting that several state officials had asserted in their depositions that a categorical prohibition on adoption and fostering by unmarried cohabitating couples would not serve the best interests of children.28 And counsel for the state had conceded at oral argument that some individuals cohabitating with sexual partners could provide suitable homes for children.29 Additionally, the state’s concerns that unmarried cohabitating relationships are unstable and put children at higher risk than marital relationships “can . . . be addressed by the individualized screening process currently in place in foster and adoption cases.”30 The court described this screening process in detail, concluding that “[w]e have no doubt that this individualized assessment process is a thorough and effective means to screen out unsuitable applicants . . . .”31
Having determined that the Arkansas Adoption and Foster Care Act directly and substantially burdened the fundamental right to privacy implicit in the state’s constitution and that the Act was not the least restrictive means of protecting the state’s children from unstable homes, the Arkansas Supreme Court invalidated the Act and affirmed the decision below.32 Accordingly, the court refused to address the federal constitutional claims and remaining state constitutional claims that the plaintiffs advanced on cross-appeal.33 Although limited in its immediate effect to Arkansas, this decision will certainly add to the ongoing national dialogue concerning the ability of the several states to prohibit gay couples from adopting children or serving as foster parents.
* Jordan E. Pratt is a third-year law student at the University of Florida. He is president of the school’s Federalist Society student chapter.
1 Ark. Dep’t of Human Servs. v. Cole, 2011 Ark. 145 (2011).
2 See, e.g., Nathan Koppel, Arkansas Supreme Court Expands Gay Adoption Rights, Wall St. J. (Apr. 7, 2011, 3:30 PM), http://blogs.wsj.com/law/2011/04/07/arkansas-supreme-court-expands-gay-adoption-rights/?mod=WSJBlog (last visited Oct. 10, 2011); Amanda Terkel, Arkansas Supreme Court Strikes Down Ban on Gay Adoptions, Huffington Post (Apr. 7, 2011, 2:51 PM), http://www.huffingtonpost.com/2011/04/07/arkansas-supreme-court-ban-gay-adoption_n_846174.html (last updated June 7, 2011).
3 Cole, 2011 Ark. at 2.
4 Id. at 2-3.
5 Id. at 3.
7 See Cole v. Arkansas—About Our Plaintiffs and Their Families, ACLU.org (Dec. 30, 2008), http://www.aclu.org/lgbt-rights_hiv-aids/cole-v-arkansas-profiles-our-plaintiffs-and-their-families (last updated Oct. 27, 2010).
8 Cole, 2011 Ark. at 3.
9 Id. at 4-5.
10 Id. at 5-6.
11 Id. at 6.
12 Id. at 5-7.
13 Id. at 6.
14 Id. at 7.
15 Id. at 2.
16 Id. at 8.
17 Jegley v. Picado, 80 S.W.3d 332 (Ark. 2002).
18 Id. at 350.
20 Cole, 2011 Ark. at 10, 11.
22 374 U.S. 398 (1963).
23 Cole, 2011 Ark. at 12-14.
24 Id. at 16.
25 Id. at 16-17.
26 Id. at 17-18.
27 Id. at 21.
28 Id. at 21-22.
29 Id. at 22.
30 Id. at 23.
31 Id. at 23–24.
32 Id. at 25.