The Morning News

Local News for Northwest Arkansas

Group Wants State Laws Against Gay Adoption

LITTLE ROCK -- Supporters of Initiated Act 1 hope to add Arkansas to a small group of states with laws aimed at barring gays from adopting children in state custody.

The measure, which will appear on the Nov. 4 general election ballot, would ban unmarried couples living together from adopting or serving as foster parents in the state.

THE ASSOCIATED PRESS Jerry Cox, president of Arkansas Family Council, reads a statement at the Capitol in Little Rock on Thursday.

Early voting in the election begins Monday.

FILE PHOTO THE ASSOCIATED PRESS David Cox, left, and Jill Davis, right, carry boxes of petitions with Arkansas Family Council Action Committee President Jerry Cox, center, at the Arkansas state Capitol on Aug. 21, 2008, in Little Rock. Children's advocacy groups are fighting Arkansas' policy barring unmarried couples living together from fostering children, as a campaign is under way to put a similar restriction into law.

The conservative group Family Council submitted the ballot question after studying the laws of Mississippi, Florida and Utah, according to Executive Director Jerry Cox.

Mississippi has a law banning adoption by “couples of the same gender.” Florida’s law prohibits a person from adopting “if that person is a homosexual.”

The law in Utah prohibits adoption “by a person who is cohabiting in a relationship that is not a legally valid and binding marriage under the laws of this state” and says a child cannot be placed in foster care with anyone who would not qualify as an adoptive parent.

“The best legal advice that we had was that Utah was the most constitutionally sound law that was on the books,” Cox said.

Cox said the Family Council has made no secret of its intention to “blunt a gay agenda at work in Arkansas,” but the group concluded the measure would better withstand legal challenges if it did not single out gays.

“To say that it would for certain have been struck down had we mentioned homosexuals in the proposal, that’s not certain, but it would have opened the door for litigation and the possibility of it being struck down,” Cox said.

Arkansas Families First, a coalition opposed to the measure, argues the wording is still discriminatory.

“Whether you’re willing to discriminate against an entire class of gay and lesbian Americans or unmarried Americans, you’re discriminating either way,” said Brett Kincaid, the coalition’s campaign director.

Federal courts upheld Florida’s ban on adoption by gays in separate cases in 2001 and 2004. The U.S. Supreme Court declined to hear an appeal in the 2004 case.

A circuit judge in Florida ruled in August the 1977 law was unconstitutional, saying it violated the constitutional separation of powers by preventing judges from deciding case-by-case what was in the best interest of children.

Florida did not appeal the ruling. Legal experts said in the absence of a higher-court ruling, the judge’s opinion would not set a binding precedent.

Another challenge to the Florida law is now in the courts.

In Utah, a ban on adoption by unmarried couples was first put in place as a policy approved in 1999 by a vote of the board of directors of the state’s Division of Child and Family Services. Later the same year, Utah Children, a group opposed to the ban, sued the state over the policy.

While the case was still in court, the Utah Legislature passed a law banning unmarried couples from adopting or serving as foster parents, making the lawsuit moot.

The Utah chapter of the American Civil Liberties Union says on its Web site it opposes the law and is “on the lookout” for incidents of discrimination, though it has not challenged the law in court.

The debate in Arkansas also began over a state policy. In 1999, the state Child Welfare Agency Review Board approved a policy banning the placement of foster children in any household with a gay member.

In a case brought by the Arkansas chapter of the ACLU, Pulaski County Circuit Judge Timothy Fox ruled in 2004 the policy was unconstitutional because the board had overstepped its authority by trying to regulate “public morality.”

“The testimony and evidence overwhelmingly showed that there was no rational relationship between the ... blanket exclusion (of gays) and the health, safety and welfare of the foster children,” Fox wrote in his opinion. The state Supreme Court upheld Fox’s ruling in 2006.

In 2007, the Family Council backed a bill in the Legislature that would have put into law a ban on adoption or foster parenting by gays or unmarried couples living together. The bill died in a House committee after passing the Senate.

Until this month, the state Department of Human Services was operating under a 2005 directive that banned placing foster children with unmarried couples. The state has no such policy regarding adoptions by unmarried couples.

The agency held a public hearing on the foster care policy Oct. 2, and a week later the agency announced it would drop the policy and propose a new policy stating placement decisions will be made on a case-by-case basis.

The state will continue to operate under the 2005 directive until its new proposed policy has gone through a 30-day public-comment period. The Family Council has not decided whether to ask for a public hearing on the new policy, Vice President John Thomas said.

“That’s something we’ll certainly address after the election one way or the other if we need to. As far as we’re concerned, all options are on the table,” Thomas said.

Those options also could include another attempt to run a bill through the Legislature if the ballot question fails, he said.

If voters approve Initiated Act 1, a legal challenge could lie ahead.

“We’re looking into that possibility,” said Rita Sklar, executive director of the Arkansas chapter of the ACLU, though she said she believed voters would reject the measure.

THE ASSOCIATED PRESS Jerry Cox, president of Arkansas Family Council, reads a statement at the Capitol in Little Rock on Thursday.