A circuit judge Friday struck down a state law banning unmarried couples from adopting and serving as foster parents.
Act 1 unconstitutionally burdens non-marital relationships and acts of sexual intimacy between adults by forcing them to choose between becoming a parent and having any meaningful type of intimate relationship outside of marriage, Circuit Judge Chris Piazza ruled in a lawsuit challenging the initiative voters approved in 2008.
“It infringes upon the fundamental right to privacy guaranteed to all citizens of Arkansas,” the wrote in a two-page order in the suit brought by the ACLU.
State Attorney General Dustin McDaniel, whose office defended the law, said late Friday a decision on whether to appeal the ruling to the state Supreme Court had not been made.
Jerry Cox, director of the Family Council, the conservative organization that spearheaded the drive to put the initiated act on the November 2008 general election ballot and an intervenor in the lawsuit, said his group would definitely appeal.
Piazza wrote that “due process and equal protection are not hollow words without substance. They are rights enumerated in our constitution that must not be construed in such a way as to deny or disparage other rights retained by the people.”
Piazza sided with the ACLU in its argument that the ban reduced the pool of potential adoptive and foster parents to the point where many children could go without homes.
The ban casts “an unreasonably broad net” and does not serve the state’s interest, the judge said.
Holly Dickson, attorney for ACLU chapter in Arkansas, welcomed the ruling. “We are happy, obviously, and we hope that now families who are perfectly good families will all be able to go through the screening process, and maybe this will start chipping away at the critical shortage of foster and adoptive homes that we have,” Dickson said.
The state had argued children are better off raised in traditional family settings, with married parents, and that the law should be upheld because it protects children from abuse and neglect.
Cox called Piazza’s ruling “a classic example of judicial tyranny.”
“It is a sad day when one judge in Little Rock chooses to overrule the will of the people of Arkansas,” he said. “We teach our children in school that we have government by the people — apparently, not in this case.”
Voters approved Act 1 by a 57 percent to 43 percent margin.
“Act 1 protects the welfare of children,” Cox said. “The people of Arkansas recognized this and they passed it. Today’s ruling by Judge Piazza hurts children and it puts their welfare in jeopardy.”
The Family Council pushed for the initiated act in response to an Arkansas Supreme Court decision that voided a state agency’s policy that banned gays from Arkansas’ foster care program.
The high court ruled that the Child Welfare Agency Review Board overstepped authority granted by the Legislature in considering morality among criteria for prospective foster parents.
Critics of Act 1 said it effectively banned gays from adopting or fostering children because they were unable to get married in Arkansas. Voters in 2004 overwhelmingly approved a state constitutional amendment that defines marriage as only between a man and a woman.
Family Council, which also led the drive for the gay marriage ban, acknowledged its main objective with Act 1 was to bar gays from adopting and fostering children.
McDaniel said Friday that though he did not personally support the ballot initiative, his office advised and defended the state Department of Human Services throughout the process.
“A number of factors will have to be considered and evaluated before a decision is made as to whether an appeal would be in the best interests of the state,” McDaniel said in a news release.
Matt DeCample, spokesman for Gov. Mike Beebe, said Friday the governor was aware of the ruling but had not read it.
Beebe opposed Act 1 because he feared the law hindered the state’s ability to recruit qualified parents.