Judge rules that challenge to ban on unmarried adoption, fostering can proceed

A legal challenge to an Arkansas law banning unmarried couples from adopting or fostering children can move to trial, a judge ruled Tuesday.

Pulaski County Circuit Judge Chris Piazza told lawyers he remained especially interested in arguments that the voter-approved ban violated the U.S. Constitution's equal protection clause. That clause, created immediately after the Civil War to protect freed slaves, now could affect whether the ban put in place to stop gays from serving as foster parents can remain in place.

"I think it's your strongest issue in this case," Piazza said.

The Arkansas chapter of the American Civil Liberties Union filed the lawsuit on behalf of more than a dozen families seeking to overturn the ban. The suit argues that stopping unmarried couples from adopting violates their rights.

Stephen Ehrenberg, a New York lawyer representing the families, said the new law already had stopped gay couples from taking in children. The ban also has stopped straight couples from naming a gay relative to take care of their children in wills, he said.

"The blanket solution of (the ban) excludes a much wider pool of foster parents, both gay and heterosexual couples as well," Ehrenberg said. "That has already harmed children in state custody."

The state attorney general's office argued unsuccessfully that the lawsuit came too early, before any of the families had been officially turned down by state child welfare officials from adopting or foster children. Assistant Attorney General Joseph Cordi Jr. also tried to convince Piazza that the constitution provides people no guaranteed right to serve as foster or adoptive parents.

Instead, Cordi said the ACLU and others could petition the Legislature to overturn the ban or seek an initiative to undo it.

"They have plenty of remedies in the political arena," Cordi said. "But as a matter of law, this case ought to be dismissed."

The Arkansas Family Council, the conservative group which obtained the signatures to put the measure to voters in November, has acknowledged that the prohibition was aimed at stopping gays from serving as adoptive parents. The measure came after the state Supreme Court overturned a policy by state child welfare officials in 2006 that blocked gays from serving as foster parents.

Arkansas and Utah, home to a large, conservative Mormon population, are the only states with bans on unmarried couples fostering or adopting children. Mississippi bans gay couples, but not single gays, from adopting children. Florida was the only state to completely bar gay adoption until a federal judge ruled the ban unconstitutional in December.

Byron Babione, a Scottsdale, Ariz., lawyer representing the Family Council at Tuesday's hearing, described the lawsuit as an end-run around Arkansas voters. Fifty-seven percent of state voters approved the measure, which took effect Jan. 1.

He said the plaintiffs were "looking for a judicial veto" of the voter-approved law.

Piazza did dismiss two parts of the lawsuit. The judge blocked ACLU lawyers from challenging the way the measure appeared on the November ballot and removed the state of Arkansas as a defendant in the case. The lawsuit still names the state Department of Human Services, which oversees the foster-care system, and the state's Child Welfare Agency Review Board.

Piazza set aside two weeks starting Dec. 7 to hear the case. A pretrial hearing is scheduled for Nov. 17.