S&C Obtains Victory in Arkansas Adoption Case

April 7, 2011

On April 7, the Arkansas Supreme Court struck down the Arkansas Adoption and Foster Care Act of 2008, or Act 1, as an unconstitutional violation of fundamental privacy rights under the Arkansas Constitution. Act 1 bans any unmarried person who lives with a partner in a sexual relationship, including those in same-sex relationships, from serving as an adoptive or foster parent in Arkansas.

Presently, there are more than 1,600 children in the state of Arkansas seeking a permanent family, and in 2009 alone, 248 teenagers “aged out” of the Arkansas foster system without finding a permanent home. The Arkansas Supreme Court's decision affirms an earlier ruling by the Pulaski County Circuit Court, which Arkansas attorney general Dustin McDaniel appealed. The plaintiffs were represented by S&C as co-counsel with the ACLU.

Act 1 was sponsored by the Family Council Action Committee of Arkansas and approved as a ballot initiative by a majority of Arkansas voters who voted on November 4, 2008. In December 2008, S&C and the ACLU filed suit in Pulaski County Circuit Court against the Arkansas Department of Human Services and the Child Welfare Agency Review Board on a number of grounds, including that Act 1 deprived children in state care of their constitutional right to due process; Act 1 violated equal protection and due process, including the fundamental right to privacy, by penalizing same-sex couples and cohabiting couples for their relationships without any child-welfare justification; Act 1 violates fundamental rights of parental decision making; and Act 1 deprives children with cohabiting designated caregivers of their right to equal protection of the laws. The Family Counsel Action Committee and its president, Jerry Cox, intervened.

Following extensive fact discovery, including the filing of fourteen expert reports and the taking of more than 40 depositions, both sides moved for summary judgment. Stacey Friedman, who with Steve Ehrenberg, also successfully argued against the motion to dismiss, argued the motion for the plaintiffs. On April 16, 2010, the Pulaski County Circuit Court granted summary judgment to the plaintiffs, declaring Act 1 to be an unconstitutional infringement on Arkansas citizens' fundamental right to privacy under the state constitution that was not narrowly tailored to the least restrictive means of serving the state's interest. The state and the Family Council appealed. The Arkansas Supreme Court heard oral argument on March 17, 2010, with Garrard Beeney arguing for the plaintiffs.

On April 7, the Arkansas Supreme Court unanimously affirmed the circuit court's ruling on behalf of the plaintiffs. The court concluded that Act 1 “penalizes those couples who cohabit and engage in sexual relations by foreclosing their eligibility to have children, either through adoption or by means of foster care.” The court found that Act 1 therefore created a direct and substantial burden on the individual's fundament right of privacy and that, under heightened scrutiny, Act 1 was neither narrowly tailored nor the least restrictive means of serving the state's interest in protecting the best interests of children.