By James Esseks, Director, ACLU LGBT & AIDS Project
I’m thrilled to report that we’ve just struck down a second state parenting ban. Just six months after we got rid of Florida’s 33-year-old ban on adoption by gay people, yesterday the Arkansas Supreme Court struck down that state’s related parenting ban as unconstitutional. This removes a barrier that harmed kids and families all across the state, and shows once again that the ideas driving laws like this — that gay people are bad for kids — are simply unfounded.
The Arkansas law struck down yesterday was Act 1, which banned any unmarried couple, straight or gay, from serving as adoptive or foster parents in Arkansas. Yesterday’s decision was the culmination of 2 1/2 years of hard-fought litigation against Arkansas Attorney General Dustin McDaniel and the Family Council Action Committee, who were the proponents of the initiative. It was also the culmination of a much longer battle against the efforts of anti-gay activists in that state to ban gay people from adopting.
Back in 2006, after a seven-year lawsuit, we got this same court to strike down an earlier ban on foster parenting by gay people . Then we prevented anti-gay activists from passing a new gay parenting ban through the legislature, so they put Act 1 before the voters in 2008, and it passed with 57 percent of the vote. While Act 1 doesn’t focus solely on gay couples, the measure’s proponents made clear during the election that it was designed to “blunt the gay agenda.”
Act 1 had devastating effects on kids and families in Arkansas. Take plaintiff W.H., a little girl who was taken into state custody at two months old after suffering serious physical abuse. Her grandmother, lead plaintiff Sheila Cole, is a registered nurse and wanted to adopt W.H. But since Sheila lives with her female partner of many years, Act 1 disqualified her, despite the fact that it’s a given among child welfare professionals that kinship placements like this one are preferred. So rather than going to live with her grandmother the nurse, W.H. stayed in foster care with strangers. Act 1 also barred Stephanie Huffman and Wendy Rickman, who have been together for over a decade (check out this great video of them), from adopting a child in need in Arkansas, even though they had previously been approved to adopt a special needs child from the state’s foster care system before the ban was enacted.
The plaintiffs also included three teenagers living in a state-run group home for children waiting for a family to adopt them. These kids joined the lawsuit because they don’t care whether their new family includes gay people, they’re just looking for a “forever home.”
In yesterday’s decision, the court held that Act 1 violates the Arkansas constitution’s right to privacy because it punishes unmarried couples for having intimate relationships in their homes. The court explained that Act 1 “presents a pernicious choice for [plaintiff Sheila] Cole. She can either give up her fundamental right to sexual intimacy in her home free from investigation by the State,” and thereby be able to adopt or foster her granddaughter, or she can keep her longstanding relationship with her partner but “forego the privilege of having children by adopting or fostering. We hold that the burden inflicted on her is direct and substantial.”
The only way Act 1 could both impose this burden on privacy rights and still be constitutional is if the Act were the “least restrictive method available” to the state to protect child welfare. But the court held that Act 1 failed that requirement on two grounds. First, Arkansas’s own senior child welfare officials testified that Act 1 didn’t promote child welfare at all. And second, Arkansas already puts applicants for foster or adoptive parenthood through an exhaustive individualized screening process, checking for everything from criminal records to child abuse history to substance abuse to medical history. That screening process by itself shows that Act 1’s categorical ban is both overkill and unconstitutional.
The fact that the supreme court of a conservative state struck down Act 1 after an exacting constitutional review should help us convince legislatures in other states not to pass similar restrictions on parenting by LGBT people. And if the laws do get on the books, it will help us get those laws struck down too.
But our real goal is to get to the point where laws like Act 1 don’t get passed in the first place. To do that, we have to convince people that the stereotypes that lie behind laws like Act 1 are false. The core idea we’re up against is that gay people are bad for kids. Some voters and legislators worry that we will molest kids, that we’ll make them gay, that we’ll make them gender nonconforming, or just that our kids won’t grow up to be as happy and healthy as they ostensibly would with married straight parents.
Cases like Cole and our successful challenge to Florida’s adoption ban help debunk those stereotypes. With great plaintiffs, expert testimony, and strategic lawyering, they show America that there are many kids being successfully raised by lesbians and gay men. They show that lots of other kids are hurt when they’re stuck in group homes because the pool of possible adoptive homes is unjustifiably narrowed by restrictions like Act 1. They also help show that the stereotypes about how gay people are bad for kids are just wrong — they’re based on fear rather than science. For instance, as I mentioned above, the court in Cole noted the testimony of high-level child welfare officials within Arkansas’s Department of Human Services that there was no child welfare basis for Act 1 in the first place. In other words, the folks in Arkansas who best understand what kids need say gay people aren’t bad for kids. That’s a powerful message from powerful messengers, with a stamp of approval from the state supreme court.
So the ACLU has now gotten rid of the two most prominent anti-gay parenting restrictions, and we wait to see whether similar restrictions will appear again in either state — whether in the statehouse or at the ballot — or whether the people of Arkansas and Florida are finally ready to move on. We’ll be there if our opponents try to pick up the fight once more, but for the moment, we’re savoring a hard-earned victory for kids all across the state.