Law School Case Brief
Ark. Dep't of Human Servs. v. Cole - 2011 Ark. 145, 380 S.W.3d 429
Initiated Act 1, codified at Ark. Code Ann. §§ 9-8-301 to 9-8-305 (2009), is unconstitutional on the grounds that it burdens the fundamental right to privacy implicit in the Arkansas Constitution.
Arkansas voters approved Initiated Act 1, also known as the Arkansas Adoption and Foster Care Act of 2008, as a ballot initiative, which prevented unmarried adults that were cohabitating with a sexual partner from adopting or becoming a foster parent of a child. Initiated Act 1 was rendered unconstitutional as a violation of fundamental privacy rights implicit in the Arkansas Constitution. The Arkansas Department of Human Services and its Director and his successors, as well as the Arkansas Child Welfare Agency Review Board and its Chairman and his successors appealed the judgment.
Was Arkansas Act 1, a 2008 a ballot initiative entitled "An Act Providing That an Individual Who is Cohabiting Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less Than Eighteen Years Old," unconstitutional for violating fundamental privacy rights implicit in the Arkansas Constitution?
The Supreme Court of Arkansas affirmed the ruling upon finding that that the fundamental right to privacy implicit in Arkansas law that protected all private, consensual, noncommercial acts of sexual intimacy between adults was at issue. The burden imposed by the State under Act 1 was direct and substantial. Thus, the Court applied the heightened scrutiny standard. Because Act 1 exacted a categorical ban against all cohabiting couples engaged in sexual conduct, the Court held that it was not narrowly tailored or the least restrictive means available to serve the State's compelling interest of protecting the best interest of the child. The Court concluded that the individualized assessments of people wanting to adopt or become foster parents conducted by the Arkansas Department of Human Services and the trial courts were the least restrictive means necessary for addressing the State's compelling interest of protecting the welfare, safety, and best interest of Arkansas's children.
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