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

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Proposed Initiative 1, also know as the Unmarried Couple Adoption Ban appeared as an initiated state statute on the November 4, 2008 ballot in Arkansas, where it was approved.[1]

However, an Arkansas Supreme Court ruling overturned the measure in April 2011. The ban 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.

Election results

Arkansas Unmarried Couple Adoption Ban
OverturnedotOverturned Case:Arkansas Department of Human Services v Cole 2011 Ark. 145 Supreme Court of Arkansas No. 10-840
Yes 586,248 57.1%


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.[2]

Supreme Court ruling

On April 7, 2011, the Arkansas Supreme Court in a unanimous 7-0 decision, struck down the measure 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."[3][4]

History of the initiative

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.

Poll data

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

  • 53 percent approved
  • 42 percent rejected it
  • 5 percent had no opinion or refused to answer
See also Polls, 2008 ballot measures.


John Thomas, vice president of the Arkansas Family Council, was the proponent of the measure. The group also worked with the Focus on Family Action group. The groups worked closely with Christian religious groups to gather signatures.

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."[5]

The Family Council has called Arkansas Families First, the measure's main opposition group, a "pro-gay coalition that is pushing a gay activist agenda."

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.

Also supporting the initiative is the Marion, Arkansas-based Families First Action Committee, led by Christian conservative Bill Wheeler. The group has filed its ballot committee forms and is helping gather signatures for the initiative.


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 is 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.[1]

"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." [2]

The Arkansas Families First coalition is building 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 Aug. 19, 2008, saying it raised $13,345 in July to campaign against this initiative. The group spent $5,302.

The American Civil Liberties Union is 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.

The Arkansas Democrat Gazette opposed the measure in an editorial saying it is a poorly disguised law against homosexual adoption and would stir up ill will toward homosexuals while denying good homes to children who need one.

Path to the ballot

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

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.[6] If the validation process drops the measure below the required number of signatures, supporters would have 30 days to collect enough signatures to make up the shortfall.

As expected, filed signatures came up short—by 4,086 signatures— after verification by the Secretary of State's office. Supporters now have 30 days, from July 23, to make up the shortfall. Jerry Cox said the group has already gathered about 2,000 additional signatures, expecting that they would be needed, and is confident they can gather enough more before the final deadline. The group's validity rate was about 91% for the signatures already filed.

The group turned in an additional 31,012 signatures on Aug. 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.

The group said Sept. 23, 2008, that it has decided not to file the lawsuit to remove the measure from the ballot.

Attorney General Dustin McDaniel, who was responsible for approving the initiative's language, said Aug. 22, 2008, that he is confident his office could defend the initiative against any court challenges.

Willhite said Aug. 25, 2008, that a lawsuit challenging the proposed initiated act could be filed as early as next 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.)

Debbie Willhite, lead consultant for Arkansas Families First, said the group ultimately decided to devote its resources to campaigning for the defeat of the adoption measure rather than pursuing legal action to strike the measure from the ballot.

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