Arkansas Department of Human Services v. Cole
2011 Ark. 145, 380 S.W.3d 429, 2011 Ark. LEXIS 131 (2011)
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Rule of Law:
The fundamental right to privacy, implicit in the Arkansas Constitution, protects private, consensual, noncommercial sexual intimacy between adults, and a state law directly and substantially burdening this right is subject to heightened scrutiny, requiring it to be narrowly tailored to a compelling state interest using the least restrictive means.
Facts:
- On November 4, 2008, Arkansas voters approved a ballot initiative known as the Arkansas Adoption and Foster Care Act of 2008 or “Act 1.”
- Act 1, which became effective on January 1, 2009, prohibits any individual from adopting or serving as a foster parent if they are "cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state."
- The Act explicitly applies equally to cohabiting opposite-sex and same-sex individuals and states that the public policy of Arkansas favors marriage over unmarried cohabitation regarding adoption and foster care, believing it is in the best interest of children to be reared in such homes.
- Sheila Cole, along with other appellees, including unmarried adults who desired to foster or adopt children, adult parents who wished to designate guardians for their children, and the biological children of those parents, were individuals directly affected by Act 1's prohibitions.
Procedural Posture:
- On December 30, 2008, Sheila Cole and a group of other appellees filed a complaint in circuit court against the State of Arkansas and its relevant agencies, challenging Act 1 on multiple constitutional grounds.
- On January 16, 2009, the State moved to dismiss the complaint; on the same day, the Family Council Action Committee (FCAC), a sponsor of Act 1, successfully moved to intervene in the case.
- Following a hearing, the circuit court granted FCAC's intervention and FCAC filed its own motion to dismiss, adopting the State's arguments.
- On April 16, 2009, the circuit court dismissed one count (Count 11) and deferred judgment on other motions to dismiss; the State of Arkansas and the Attorney General were dismissed as defendants.
- After discovery, Cole, the State, and FCAC each filed motions for summary judgment.
- In an order dated April 16, 2010, the circuit court granted Cole’s motion for summary judgment on Count 10, declaring Act 1 unconstitutional under the Arkansas Constitution for violating fundamental privacy rights, while granting the State's and FCAC's summary judgment motions on claims under the U.S. Constitution and dismissing the remaining state constitutional claims as unnecessary.
- On May 10, 2010, the circuit court entered a final order and judgment, staying its enforcement pending appeal.
- The Arkansas Department of Human Services and its Director and the Arkansas Child Welfare Agency Review Board and its Chairman (appellants) appealed the circuit court's ruling that Act 1 was unconstitutional under the Arkansas Constitution to the Arkansas Supreme Court.
- Sheila Cole and the other appellees (cross-appellants) cross-appealed the circuit court’s dismissal of their other constitutional claims.
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Issue:
Does an initiated act that categorically prohibits individuals cohabiting with a sexual partner outside of a valid marriage from adopting or serving as foster parents violate the fundamental right to privacy implicit in the Arkansas Constitution by directly and substantially burdening private, consensual sexual intimacy, and if so, does it survive heightened scrutiny?
Opinions:
Majority - Justice Robert L. Brown
Yes, an initiated act that categorically prohibits individuals cohabiting with a sexual partner outside of a valid marriage from adopting or serving as foster parents violates the fundamental right to privacy implicit in the Arkansas Constitution because it directly and substantially burdens private, consensual sexual intimacy and does not survive heightened scrutiny. The court affirmed the circuit court's ruling, recognizing that a fundamental right to privacy is implicit in the Arkansas Constitution, as established in Jegley v. Picado, protecting all private, consensual, noncommercial acts of sexual intimacy between adults. Act 1, by conditioning eligibility for adoption or foster parenting on abstaining from cohabitation with a sexual partner, places a direct and substantial burden on this fundamental right. The court rejected the argument that adoption or fostering are mere privileges, citing U.S. Supreme Court precedent (e.g., Shapiro v. Thompson, Sherbert v. Vernier) that constitutional rights cannot be conditioned on foregoing benefits or privileges. Because Act 1 burdens a fundamental right, it must be subjected to heightened scrutiny, requiring a compelling state interest and the use of the least restrictive means, narrowly tailored to achieve that interest. While the State's interest in protecting children's welfare is compelling, Act 1's categorical ban is not narrowly tailored and is not the least restrictive means. The court noted that the individualized screening process already in place for foster and adoption applicants (background checks, home studies, etc.) is sufficient to address concerns like relationship instability, abuse, or lack of support, making a blanket ban unnecessary and overbroad. Testimony from the State's own witnesses, including DHS administrators, also indicated that Act 1 did not promote child welfare interests and that individualized assessment was superior. The court distinguished the State's reliance on cohabitation in child-custody cases, noting those involve case-by-case analysis and typically concern third parties not subjected to rigorous screening.
Analysis:
This case reinforces the breadth and importance of the fundamental right to privacy implicit in the Arkansas Constitution, extending its protection beyond criminal sodomy statutes to civil regulations that substantially burden intimate relationships. It establishes a significant limitation on the state's ability to impose blanket bans based on marital status or cohabitation for services like adoption and foster care, particularly when less restrictive, individualized assessment mechanisms exist. The decision highlights the judiciary's role in scrutinizing laws that infringe on fundamental rights, even if passed by popular initiative, ensuring they are narrowly tailored and employ the least restrictive means to achieve legitimate state interests. This ruling sets a precedent for how future legislation impacting private intimate conduct and access to state benefits will be evaluated under the Arkansas Constitution's privacy protections.
