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Arkansas Unmarried Couple Adoption Ban, Proposed Initiative 1 (2008)

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The Arkansas Unmarried Couple Adoption Ban Initiative, also know as the Proposed Initiative Act 1 was on the November 4, 2008 ballot in Arkansas as an initiated state statute, where it was approved. The measure made it illegal for any individuals cohabiting outside of a valid marriage to adopt or provide foster care to minors. While the measure was proposed primarily to prohibit same-sex couples from being adoptive or foster parents, the ban also applied to all otherwise qualified couples who are not legally married.[1][2]

An Arkansas Supreme Court ruling overturned the measure in April 2011.

Election results

Arkansas Proposed Initiative Act 1 (2008)
OverturnedotOverturned Case:Arkansas Department of Human Services v. Cole 2011 Ark. 145 Supreme Court of Arkansas No. 10-840
ResultVotesPercentage
Yes 586,248 57.07%
No440,94542.93%

Election results via: Arkansas Secretary of State, Statewide Results by Contest

Aftermath

Lawsuit filed

On December 30, 2008, opponents filed a lawsuit in Pulaski County Circuit Court asking a judge to strike down the measure on the grounds that it violated federal and state constitutional rights to equal treatment and due process. The lawsuit had twenty-nine plaintiffs, including adults and children who could be impacted by the measure. On March 17, 2009, a Pulaski County circuit judge ruled the case should go to trial and threw out a portion of the lawsuit.

On Friday, April 16, 2009 Pulaski County Circuit Court Judge Chris Piazz determined that the ban infringed on the right of privacy and overturned it. The Arkansas Attorney General did not decide whether or not to appeal the decision, but Jerry Cox, president of the Arkansas Family Council, stated that the group would petition the Arkansas Supreme Court.[3]

Supreme Court ruling

On April 7, 2011, the Arkansas Supreme Court struck down the measure in a unanimous 7-0 decision saying it violated fundamental rights available to all Arkansas citizens under the state Constitution. The court stated, "By imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the State and our courts to conduct these individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents. As a result, Act 1 fails to pass constitutional muster under a heightened-scrutiny analysis."[4][5]

Text of measure

The language appeared on the ballot as:[6]

This text is quoted verbatim from the original source. Any inconsistencies are attributed to the original source.

Ballot Title

A PROPOSED ACT PROVIDING THAT A MINOR MAY NOT BE ADOPTED OR PLACED IN A FOSTER HOME IF THE INDIVIDUAL SEEKING TO ADOPT OR TO SERVE AS A FOSTER PARENT IS COHABITING WITH A SEXUAL PARTNER OUTSIDE OF A MARRIAGE WHICH IS VALID UNDER THE CONSTITUTION AND LAWS OF THIS STATE; STATING THAT THE FOREGOING LAWS OF THIS STATE; STATING THAT THE FOREGOING WILL NOT AFFECT THE GUARDIANSHIP OF MINORS; DEFINING “MINOR” TO MEAN AN INDIVIDUAL UNDER THE AGE OF EIGHTEEN (18) YEARS; STATING THAT THE PUBLIC POLICY OF THE STATE IS TO FAVOR MARRIAGE, AS DEFINED BY THE CONSTITUTION AND LAWS OF THIS STATE, OVER UNMARRIED COHABITATION WITH REGARD TO ADOPTION AND FOSTER CARE; FINDING AND DECLARING ON BEHALF OF THE PEOPLE OF THE STATE THAT IT IS IN THE BEST INTEREST OF CHILDREN IN NEED OF ADOPTION OR FOSTER CARE TO BE REARED IN HOMES IN WHICH ADOPTIVE OR FOSTER PARENTS ARE NOT COHABITING OUTSIDE OF MARRIAGE; PROVIDING THAT THE DIRECTOR OF THE DEPARTMENT OF HUMAN SERVICES SHALL PROMULGATE REGULATIONS CONSISTENT WITH THE ACT; AND PROVIDING THAT THE ACT APPLIES PROSPECTIVELY BEGINNING ON JANUARY 1, 2009.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF ARKANSAS:

Section 1: Adoption and foster care of minors.

(a) A minor may not be adopted or placed in a foster home if the individual seeking

to adopt or to serve as a foster parent is cohabiting with a sexual partner outside of a marriage which is valid under the constitution and laws of this state.

(b) The prohibition of this section applies equally to cohabiting opposite-sex and

same-sex individuals.

Section 2: Guardianship of minors. This act will not affect the guardianship of minors.

Section 3: Definition. As used in this act, “minor” means an individual under the age of eighteen (18) years.

Section 4: Public policy. The public policy of the state is to favor marriage, as defined by the constitution and laws of this state, over unmarried cohabitation with regard to adoption and foster care.

Section 5: Finding and declaration. The people of Arkansas find and declare that it is in the best interest of children in need of adoption or foster care to be reared in homes in which adoptive or foster parents are not cohabiting outside of marriage.

Section 6: Regulations: The Director of the Department of Human Services, or the successor agency or agencies responsible for adoption and foster care, shall promulgate regulations consistent with this act.

Section 7: Prospective application and effective date. This act applies prospectively beginning on January 1, 2009.

Support

John Thomas, vice president of the Arkansas Family Council, was the proponent of the measure. The group also worked with the Focus on the Family Action group. The groups worked closely with Christian religious groups to gather signatures.[7] Mona Passignano, state issues analyst for the Colorado-based Focus on the Family Action, said "I'm sure that many states are going to have to deal with this at some point. Right now, Arkansas is the only one actively trying to let the people decide."[7]

The Family Council reported in its May 15, 2008, campaign finance filing that it had raised $29,514 and spent $29,970 through the end of April in support of the measure, leaving it $456 in debt.[8]

Opposition

A coalition of child welfare, faith, and social justice groups called Arkansas Families First formed to fight the initiative. Members of the coalition include Arkansas Advocates for Children and Families, the Interfaith Council, the Arkansas Association of Social Workers, the American Academy of Pediatricians-Arkansas Chapter, and the Arkansas Psychological Association. One of spokespeople for the coalition was Dr. Eddie Ochoa, President of the Arkansas Chapter of the American Society of Pediatrics. "Our major concern ... is it would restrict the number of foster and adoptive homes that DHS desperately needs," Ochoa said.[9]

"The legislation just doesn't allow for any case-by-case judgment about what's best for the child," said Robbie Thomas-Knight, director of professional affairs for the Arkansas Psychological Association. "And we don't want to see children languishing when there are good homes."[9]

The Arkansas Families First coalition built up a war chest in order to defeat the measure. The group had raised $44,615 and spent $22,733 by the end of April, according to campaign finance reports, leaving $21,883 on hand. Arkansas Families First filed a campaign finance report August 19, 2008, saying it raised $13,345 in July to campaign against this initiative. The group spent $5,302.[10]

The American Civil Liberties Union was also opposing the measure. "This is an issue about children, about providing homes to the children who are most in need in this state," said Rita Sklar, executive director of the Arkansas chapter of the American Civil Liberties Union. She is also a member of Arkansas Families First's board.[11]

Poll data

See also: Polls, 2008 ballot measures

A poll conducted by the University of Arkansas did a random poll of 754 adults in October asking if people approved of the initiative.[11]

Date of Poll Pollster In favor Opposed Undecided Number polled
October University of Arkansas 53% 42% 5% 754

Path to the ballot

See also: Laws governing the initiative process in Arkansas

The measure was certified for the November 2008 ballot by the Secretary of State's office on August 25, 2008.

The initiative stemmed from a Supreme Court case about the Arkansas's Child Welfare Agency Review Board that had established an administrative policy that banned gay people from serving as foster parents. The ruling was struck down unanimously after a seven year legal battle between the state and the ACLU.

The Arkansas Family Council then tried to push a bill that would have banned same-sex adoption or foster care through the Arkansas legislature last year. Governor Mike Beebe had suggested that there were constitutional problems with the bill and it never came to pass.

When the legislation failed, the Family Council drafted an initiative that was initially rejected by the Attorney General McDaniel "because it included references to marriage as the ideal child-rearing environment and to cohabiting households as more prone to instability, poverty and other societal ills." When these references were removed the ballot was approved and certified.

Signatures filed

Supporters filed signatures on July 7, 2008, acknowledging as they did that they were likely to be short of the required 62,000 signatures after some loss in the validation process. As expected, filed signatures came up short—by 4,086 signatures— after verification by the Secretary of State's office. Supporters then had 30 days, from July 23, to make up the shortfall. Jerry Cox said the group had already gathered about 2,000 additional signatures, expecting that they would be needed, and was confident they can gather enough more before the final deadline. The group's validity rate was about 91% for the signatures already filed.[12]

The group turned in an additional 31,012 signatures on August 21, 2008. Cox said he was confident that it was enough to ensure a spot on the ballot for the measure.

Signature lawsuit threatened

"We will absolutely, positively, beyond any doubt, file a suit to enjoin the initiative from the ballot," said Debbie Willhite, spokeswoman for Arkansas Families First. She said Arkansas Families First would challenge the validity of signatures, the constitutionality of the proposal, and whether the ballot title is sufficient.[13]

Attorney General Dustin McDaniel, who was responsible for approving the initiative's language, said August 22, 2008, that he was confident his office could defend the initiative against any court challenges. Willhite said August 25, 2008, that a lawsuit challenging the proposed initiated act could be filed as early as the following week, possibly arguing that the ballot title is misleading, as well as alleging canvassing irregularities and discrimination against a class of people (unmarried, cohabiting adults). "If we can't keep it off the ballot, we're going to put up a vigorous campaign to defeat this heinous proposal," Willhite said.[14]

See also

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