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Posts Tagged ‘Arkansas State Constitution’

What’s Next for Arkansas Ban on Fostering and Adoption by “Cohabitators”?

April 16th, 2010 No comments

As you’ve doubtless heard, an Arkansas state judge just struck down the 2008 ballot initiative that purports to prohibit all unmarried, cohabitating couples from fostering or adopting children. The short ruling is confusing to non-lawyers, because the judge held that the measure passes federal constitutional scrutiny, but is invalid under the state constitution. Judge Piazza simply states that the case involves no fundamental, federal constitutional right as though that proposition were clearly decided, but it’s not. One might say that the U.S. Supreme Court decisions declaring private family matters including child-rearing to be fundamental rights would cover this situation, but Piazza avoids the issue.

Then, inexplicably, he reanimates “privacy,” gives it great weight under state law, and therefore holds that a more searching scrutiny is needed under the Arkansas Constitution. Under that standard, the legislation fails: there’s no compelling government interest in the exclusion.

But here’s the payoff: After first noting that the ballot measure was initiated after the Arkansas Supreme Court struck down an administrative decision barring gay parents from foster parenting, Judge Piazza stated plainly that the Act was clearly targeted at gay couples, who don’t have the same option of marrying as straight ones. Then he says:

“[I]t is especially troubling that one politically unpopular group has been specifically targeted for exclusion by the Act….Due Process and Equal Protection are not hollow words without substance.”

None of what Judge Piazza said really matters, though. The case will be appealed, certainly to the Arkansas Supreme Court (which will likely agree with the lower court), and then, depending on the vitality of the federal claim, possibly even to the U.S. Supreme Court.