## Facts

- Arkansas voters enacted Act 1 (Arkansas Adoption and Foster Care Act of 2008), which barred any unmarried person cohabiting with a sexual partner from adopting or fostering a child.
- The ban applied categorically to all unmarried cohabiting couples, including opposite-sex and same-sex couples.
- Because same-sex couples could not marry in Arkansas at the time, the law effectively foreclosed adoption and fostering for many same-sex couples.
- Prospective adoptive and foster parents, existing foster parents, and related organizations challenged Act 1 under the Arkansas Constitution and the U.S. Constitution.
- The circuit court held Act 1 unconstitutional under the Arkansas Constitution’s privacy protections and permanently enjoined enforcement; the State appealed.

## Issues

1. Whether Act 1’s categorical exclusion of unmarried cohabiting sexual partners from adopting or fostering unconstitutionally burdens the fundamental right to privacy protected by the Arkansas Constitution.
2. Whether additional state and federal constitutional challenges required resolution if the case could be decided on state-constitutional privacy grounds.

## Decision

- The Arkansas Supreme Court unanimously affirmed the circuit court.
- The court held that Act 1 violates the fundamental right to privacy implicit in the Arkansas Constitution by conditioning adoption and foster eligibility on refraining from private, consensual adult sexual intimacy within a cohabiting relationship.
- Because the privacy violation resolved the case, the court declined to decide other state or federal constitutional claims.
- Act 1 was declared unconstitutional, and the permanent injunction against enforcement remained in effect.

## Legal Principles

- The Arkansas Constitution protects a fundamental right to privacy, including private, consensual, noncommercial sexual intimacy between adults.
- A law that burdens a fundamental right triggers heightened scrutiny, requiring a compelling governmental interest and a close fit between the law and that interest.
- The State may not condition access to a government benefit or privilege on surrender of a fundamental constitutional right.
- A categorical exclusion from adoption or foster care eligibility is constitutionally suspect when it replaces individualized best-interests determinations with a blanket rule unrelated to case-specific parental fitness.

## Conclusion

Act 1’s across-the-board ban on adoption and foster parenting by unmarried cohabiting sexual partners impermissibly burdened Arkansas’s fundamental privacy right by forcing individuals to choose between an intimate cohabiting relationship and eligibility to adopt or foster, and the law failed heightened scrutiny because it was not sufficiently tailored to the State’s child-welfare interest.


Ark. Dep't of Hum. Servs. v. Cole, 380 S.W.3d 429 (Ark. 2011)