"Striking down Act 1 closes the door to intolerance and opens the door to children who need loving families to adopt them."
(Little Rock, AR, April 7, 2011) - Today, the Arkansas Supreme Court upheld the lower court ruling that struck down Act 1, an Arkansas law banning cohabiting unmarried couples living together from adopting or fostering children.
In his opinion, Associate Justice Robert L. Brown said, "Act 1 directly and substantially burdens the privacy rights of 'opposite-sex and same-sex individuals' who engage in private, consensual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner."
Lambda Legal filed a friend-of-the court brief in this case brought by the ACLU, arguing that because Act 1 infringes the fundamental right of adults to maintain intimate cohabiting relationships, the court must use heightened scrutiny when deciding the case. The brief also argued that Act 1 was motivated by antigay bias and that it furthers no legitimate purpose relating to the health, safety or welfare of Arkansas children.
"Striking down Act 1 closes the door to the intolerance endorsed by Act 1 and its antigay supporters and opens the door for children who need loving families to adopt them," said Flor Bermudez, Lambda Legal Youth in Out of Home Care Staff Attorney. "Today's ruling is based on the landmark case in 2001, Jegley v. Picado, litigated by Lambda Legal in which the Arkansas Supreme Court declared that individuals have a fundamental right to privacy and overturned the Arkansas sodomy law. Today, the Arkansas Supreme Court ruled that the state cannot prohibit a person from adopting or fostering a child simply because of who a person has an intimate relationship with."
"We applaud the court for putting the best interest of children first and we thank the ACLU for their tireless work on this important case," Bermudez said.
Lambda Legal filed an amicus brief in the Arkansas Supreme Court, along with other civil rights organizations, supporting a challenge by the ACLU to the state's Act 1, a ballot initiative approved by voters in 2008 that prohibits any individual cohabitating with a sexual partner outside a valid marriage from becoming and adoptive or foster parent. The ACLU brought the case on behalf of prospective foster and adoptive parents and children in need of placements, among others. In April 2010, the Pulaski County Circuit Court previously struck down Act 1, holding it violated rights to privacy and equal protection guaranteed under the Arkansas State Constitution. However, it concluded that the application of Act 1 involved no fundamental right protected under federal law.
The Arkansas Supreme Court upheld the ruling by the Pulaski County Circuit Court. Applying heightened scrutiny, a high level standard courts use to assess the constitutionality of a law, Arkansas Supreme Court ruled that adults have the fundamental right to sexual intimacy in the privacy of their homes and that there is a direct and substantial burden on the privacy rights of those individuals if they want to be eligible to adopt or have foster children.
