LITTLE ROCK, Ark. (BP)–An American Civil Liberties Union lawsuit that seeks to overturn a recently enacted Arkansas ban on adoption by unmarried couples could eventually impact adoption laws in other states.
Filed in state court, the lawsuit targets Act 1, a new law approved by 57 percent of voters last fall that prohibits unmarried homosexual and heterosexual couples from adopting or serving as foster parents. Utah is the only other state in the nation with such a law, although Florida prohibits homosexual singles and couples from adopting, and Mississippi allows homosexual singles to adopt but bans same-sex couples from doing so. Other state legislatures, including Tennessee’s, are considering bills that would prohibit adoptions by unmarried couples.
Although the ACLU lawsuit was filed in state court, it relies on both the Arkansas and U.S. constitutions — meaning it eventually could end up in federal court and impact other states. The new law, the suit states, discriminates against couples based on marital status.
Act 1, the ACLU claims, “disregards the bests interests of children and prevents their placement in willing, eligible and loving foster or adoptive homes” and “discriminates in an unlawful and unconstitutional manner against a group of adults willing to serve as loving foster and adoptive parents.”
The Arkansas Family Council Action Committee gathered approximately 90,000 signatures to place the proposal on the ballot, significantly more than the 62,000 required by state law. The Alliance Defense Fund, a conservative legal organization, is representing the Family Council Action Committee and seeking to intervene in the case to ask the court to uphold the law.
“The reason [Act 1 passed] is because people understand, and certainly all of the pertinent studies on the issue show, that children do best when they’re raised by both a mother and a father,” ADF attorney Byron Babione told Baptist Press. “So, the people of Arkansas have decided to encourage that policy by enacting Act 1. All the research shows that cohabitating relationships are generally unstable. So it’s not a good idea to encourage adoption and foster care with those types of relationships.”
Supporters of the new law are concerned that Arkansas Attorney General Dustin McDaniel — who is responsible for defending the state’s laws in court — won’t provide the best arguments in behalf of the law because he actually opposed its passage last fall. A Democrat, McDaniel’s political action committee gave $1,000 to the campaign that was working to defeat Act 1, the Associated Press reported.
Supporters of Act 1 began pushing for the new law when the Arkansas Supreme Court in 2006 struck down a regulation of the Arkansas Child Welfare Agency Licensing Review Board that prohibited homosexuals from serving as foster parents. The ACLU and the Alliance Defense Fund disagree whether the court’s ruling would have permitted the enactment of a new law approved by voters. The ACLU says the court’s decision found that the old rule “did not further, and in fact hurt, the health, safety and welfare of children.” But Babione, of the Alliance Defense Fund, says the court’s ruling focused less on issues of morality and more on matters of procedure.
“The court said that the department exceeded its jurisdiction that it was given by the legislature when it made that rule to prohibit homosexuals from adopting,” Babione said. “That’s not the case here. The people can’t exceed their own jurisdiction. In other words, the people have the right and the authority to determine the breadth of their jurisdiction when it comes to making social policy with respect to vulnerable children in need of parental care.”
Babione added, “Act 1 doesn’t turn on sexual orientation. It applies to, for example, all cohabitating couples and not just homosexuals who are cohabitating. This doesn’t target sexual orientation.”
In November, a Florida state judge overturned the state’s ban on homosexual adoption, ruling it violated the Florida constitution. The ruling is being appealed and could end up before the Florida Supreme Court. The law, adopted in 1977, previously was upheld in federal court.
Michael Foust is an assistant editor of Baptist Press.