The ACLU’s challenge to the ban on adoption and foster parenting by cohabiting unmarried couples, which was approved by Arkansas voters last November, survived a motion to dismiss this week. As with similar bans in Alabama, Mississippi, Utah, and North Dakota, the best interests of children are being sacrificed by the ban’s supporters in order to score a win in the “culture wars” and, more specifically, to prevent the formation or completion of lesbian and gay families.
The history of the Arkansas initiative is tortuous. In 1999, the Arkansas Child Welfare Agency Review Board promulgated a regulation prohibiting an individual from serving as a foster parent”if any adult member of that person’s household is a homosexual.”In 2006, the Arkansas Supreme Court struck this regulation down as a violation of the separation of powers under the state constitution. Dep’t of Human Servs. v. Howard, 238 S.W.3d 1 (Ark. 2006). Early in 2007, Arkansas lawmakers considered legislation that would have replaced the board’s ban on foster parenting by lesbian and gay men:and would have added to it a ban on adoption by lesbians and gay men. However, after passing the Arkansas Senate, this legislation died in the Arkansas House of Representatives. Last year’s ballot initiative was an attempt to bring this same measure directly to Arkansas voters.
In a ruling from the bench, the judge in Cole v. Arkansas dismissed a challenge to the title of the ballot initiative, but allowed the remainder of the lawsuit to proceed to trial. The trial is scheduled to begin December 7 and is expected to last two weeks.