Fighting Arkansas’ Act 1 in court

Posted on 07 Jan 2009 at 9:23am
By Andrew DeMillo Associated Press

Lawsuit gives Act 1 opponents a chance to put a new face on gay foster, adoptive parents

LITTLE ROCK, Ark. — With a new lawsuit in state court, opponents of a law banning unmarried couples from fostering or adopting children hope to put a new face on a multi-round debate that shows little sign of ending soon.

The arguments that opponents of Act 1 made in the suit aren’t that different from what they told voters in the fall election — that restricting those who can be foster or adoptive parents doesn’t serve the best interest of the state’s children. But they’re hoping to find a more receptive audience than at the ballot box with 57 percent of the vote.

By challenging the new restrictions in court rather than through the Legislature, the Arkansas chapter of the American Civil Liberties Union faces a better chance of success and less possibility of politics again being injected into the case. The ACLU filed the suit on behalf of more than a dozen families who say they’ll be harmed by the law, which took effect with the new year.

Rita Sklar, the executive director of the ACLU of Arkansas, said the group thought about seeking a repeal of the law through the Legislature but said a lawsuit seemed like a better option. Sklar said last week that a repeal — which would require a two-thirds vote — would be more politically difficult.

Following a victory at the polls for the Arkansas Family Council — a conservative group that pushed for the act as part of an effort to stop what it called the "gay agenda" — convincing lawmakers to overturn the act would be difficult. And asking Gov. Mike Beebe to spend his political capital on the controversial issue during the session doesn’t seem like an option opponents wanted to try.

With the court case, opponents of the measure get another chance to argue that the issue isn’t about homosexuality and that it’s about children’s welfare.

"Anything having to do with the h-word … scares a lot of people away from doing the right thing," Sklar said.

Sklar said, however, that the group hasn’t completely ruled out seeking a legislative solution if the court battle doesn’t succeed.

"I think it’s possible there would be support, especially when people realize the scope of the law and how far it went into the private lives of families and in many ways had nothing to do with sexuality," she said.

Even in the courts, politics won’t stay completely out of the debate.

Backers of the measure have already set their sights on Attorney General Dustin McDaniel, who as the state’s top attorney is responsible for defending the measure’s constitutionality in court. McDaniel said he doesn’t plan on stepping aside from the lawsuit, despite donations his political action committee made to opponents of the act.

McDaniel said his criticism of the law, before the election, boiled down to the merits of the law, not whether it was constitutional.

"I still don’t think it was the best decision to make on behalf of Arkansas’ foster children," McDaniel said. "But that doesn’t mean it’s unconstitutional."

Jerry Cox, the Family Council’s president, stopped short of saying he thinks McDaniel should step aside in the case but said he hopes to intervene to defend the law his group backed during the election.

"Obviously we’ve got serious questions as to whether he’s got a conflict of interest," Cox said.

The group is also taking aim at the assignment of the case to Pulaski County Circuit Judge Timothy Fox, who threw out a state rule banning gay foster parents. Fox’s ruling, and the state Supreme Court case upholding his decision, eventually led to the council’s move to ban cohabiting foster and adoptive parents.

The ACLU filed that lawsuit on behalf of four plaintffs who said the ban violated their rights. They didn’t apply to become foster parents after the court ruling, but the state’s adoption of a policy in 2005 banning cohabiting foster parents makes it unclear whether they would have been approved even with their win.

One advocate the council won’t have this time around is Beebe, who opposed the initiated act and supported changing the state’s policy banning unmarried couples from fostering children. The state was in the process of reversing that policy when voters approved the new restrictions.

Beebe has said he still thinks the law was a bad move, but is staying out of the legal fight over the new restriction. His silence on the lawsuit doesn’t bother the law’s opponents, though.

"We know what he thinks about it," Sklar said. "Right now it’s in the court system. It’s no longer in the political system."

And how long until it winds up back in the political arena is anyone’s guess. No matter how the lower court rules on the issue, neither side is likely to back down.

"When it’s all said and done, it’s going to end up in the Supreme Court anyway," Cox said.

DeMillo covers Arkansas government and politics for The Associated Press.

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