Legal Commentary

Last Friday Judge Christopher Piazza, a state circuit judge in Arkansas, struck down Act I, the Arkansas ballot initiative that banned adoption by or foster placement in a household where the applicant for parental rights is cohabiting with a sexual partner outside of marriage.  The two-page order and opinion relied on the state constitution's right of privacy, which according to the judge is "a fundamental right that protects all private, consensual, non-commercial acts of sexual intimacy between adults."  The right here was burdened, according to the court, because the law "forces [adults] to choose between becoming a parent and having any meaningful type of intimate relationship outside of marriage." Because the right is fundamental, any restriction had to satisfy strict scrutiny, which the court held Act I did not.

 Interestingly, even though Act I applies to unmarried heterosexual and same-sex couples, the court noted, disapprovingly, the history of this issue in Arkansas, most notably the fact that Act I was proposed after the state supreme court struck down a regulation banning gays and lesbians from serving as foster parents.  It described as "especially troubling" "that one politically unpopular group has been specifically targeted for exclusion" by the law.  In this sense it's another interesting example of the mixture of equal protection and due process analysis that has seemed to permeate the constitutional status of family and intimacy ever since Skinner v. Oklahoma.