Adoption and Foster Parenting by Unmarried Cohabitating Couples Who Have a Sexual Relationship

Arkansas’s Act 1 (passed by a voter initiative, though that didn’t affect the analysis), “an individual is prohibited from adopting or serving as a foster parent if that individual is ‘cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.'” Today’s Arkansas Dep’t of Human Servs. v. Cole, a unanimous decision from the Arkansas Supreme Court, struck down the law. The reasoning went basically as follows:

1. The Arkansas Constitution was interpreted in Jegley v. Picado (2002) as securing a right to privacy, included in which is protection of “private, consensual, noncommercial acts of sexual intimacy between adults.”

2. There is no constitutional right to adopt or to be a foster parent; but even privileges that the government may withdraw for some reasons generally can’t be withdrawn in a way that substantially burdens a constitutional right. Here, telling people that to adopt or to be a foster parent they must give up their constitutional right to sexual intimacy with their chosen partner is a substantial burden on that constitutional right. “[U]nder Act 1 the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children. The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic. They must chose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt or foster.”

3. The court didn’t consider the possibility that heterosexual unmarried couples who want to adopt or foster children could avoid this burden by marrying, presumably because the right to privacy also includes a right not to marry.

4. Burdens on the right to sexual intimacy can still be constitutional if they are narrowly tailored to a compelling government interest, and exclusion of some such couples as part of the “best interests of the child” analysis might be constitutional. (The court said the same as to “no living with your lover while your children are present” conditions in child custody orders.) But this could only be done based on individualized findings that the particular relationship is indeed against the child’s best interests.

The systems for selecting parents for adoption and foster care already provide for individualized examination of the fitness of prospective adoptive or foster parents. If there’s concern that a particular unmarried relationship is so likely to be unstable, for instance, that it would be against a child’s best interests to be placed in that family, then that concern could be considered as part of the selection process. But a categorical ban on such parents isn’t narrowly tailored to the government interest in protecting children. (I take it that this decision was partly influenced by the fact that for many children who are up for adoption or foster care, the choice is not between an eminently suitable married couple as parents and an unmarried couple as parents, but rather between an unmarried couple and an unsuitable married couple, or an unmarried couple and some group home, or an unmarried couple who are the child’s relatives and a married couple who are strangers to the child.)

The analysis strikes me as correct, given the recognition of a couple’s sexual intimacy as a constitutional right. Just as a rule that bars placing children with libertarians, Socialists, or gun owners would be an unconstitutional burden on the underlying right to speak or to own guns, so a rule that bars placing children with unmarried couples in a sexual relationship is an unconstitutional burden on the underlying right to sexual intimacy.

Thanks to How Appealing for the pointer. No thanks to the AP headline writer who characterized the story as “Ark. court strikes down law barring gay adoptions” (though the body of the story does note that the law barred all adoptions by unmarried couples, same-sex and otherwise).