Prop. 8 in California wasn’t the only anti-gay initiative that passed on election day. Voters in Arkansas also passed an initiative prohibiting any cohabiting adult from adopting a child or becoming a foster parent. Since Arkansas passed a ban on marriage for same-sex couples four years earlier, the law effectively excludes anyone in a same-sex relationship. Yesterday, the ACLU's LGBT Project filed a lawsuit in state court in Little Rock challenging the initiative (you can read the complaint here).

The initiative should be struck down, the case says, for two reasons. First, it is bad for children because, in a state with many more children than prospective foster and adoptive parents, it denies them homes. Second, it interferes with family, by keeping gay people from building families and by keeping straight parents from asking gay and straight cohabiting couples to step in for them as parents should something happen.

Sheila Cole and Jennifer Owens

The case against the initiative is framed by the people for whom it was brought, and, of course, by the federal and state constitutions.

Sheila Cole is one of the plaintiffs. She and her partner of nine years live in Tulsa. Sheila’s daughter had a baby girl in May. The baby is now in protective custody in Bentonville, Arkansas, after being taken to a hospital with multiple broken ribs when she was about 2 months old. Sheila asked the state to let her granddaughter join her in Tulsa, and offered to become her foster mother. Every week, she drives four hours to spend time with the baby. The state of Oklahoma did a home study and approved. Her application was pending with the Arkansas Department of Human Services when the initiative passed.

Cary & Trina Kelley, their two daughters, and Vickie Kelley & Sophia Estes

Cary Kelley and his wife Trina are also plaintiffs. Cary’s mother Vickie Kelley lives across the road from them with Sophia Estes, her partner of 16 years. Cary was a passenger in car wreck that killed his brother 9 years ago. His wife is a product of the foster care system. They want to be sure that if anything happens to them, their two young daughters will be taken care of. They’d be sure of that if they knew that Vickie and Sophie, who have a close relationship with the kids, would be allowed to step in and adopt. But since Vickie and Sophie are a same-sex couple, they can’t.

Stephanie Huffman and Wendy Rickman, also part of the case, are professors at the University of Central Arkansas. They’ve been together 10 years. In 2003, the state had them take in a hearing-impaired two-year-old with serious learning disabilities. The state approved his adoption the next year. Wendy gave birth in 2003, and they are raising the two boys as brothers. They’d like to adopt again, and would welcome another special needs child. That’s off the table now.

Wendy Rickman and Stephanie Huffman

The constitution, the case says, requires the state to act in the best interests of children who, like Sheila’s granddaughter and Stephanie’s son, it has taken into custody. Excluding capable parents who can give children a home does the reverse. The constitution, the case also says, requires the state to let people like Stephanie and Wendy form families. It can’t penalize them for that without any good reason.

And there is no good reason to exclude gay people, or other cohabiting couples, from being foster parents or adopting. In 1999, the ACLU challenged an earlier rule banning gay people from becoming foster parents. In that challenge, the court heard from leading authorities on child welfare and parenting, all of whom testified that sexual orientation has nothing to do with ability to parent. They refuted every conceivable argument for the ban, from claims that same-sex relationships are unstable to claims that gay people are child abusers.

A unanimous Arkansas Supreme Court ruled that the state agency that issued the rule banning foster parenting didn’t have the legal authority to do something so clearly not in the best interest of children. The initiative passed this year was designed to provide the state the authority to act against the best interests of its children. When the new case comes to trial, we’ll be back once again with the nation’s leading authorities on child welfare. After hearing them, we hope the courts will agree that the constitution doesn’t allow the state to do something so clearly against a child’s best interest either.

Want to learn more about the rights of LGBT parents? Please visit Get Busy, Get Equal!

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