Act 1 Case: DHS v. Cole The Verdict

Act 1 Case: DHS v. Cole The Verdict

by Spencer Hamilton on Sunday, April 10, 2011 at 9:32pm

Hello All! I'm trying to come up with a catch greeting, so please leave some in the comments if you have suggestions!

It is with great pleasure that I have read the unanimous opinion of the Arkansas Supreme Court as given by Associate Justice Robert Brown. Now comes the time to take this opinion apart and kind of show what the Court's findings were and legal reasoning behind it are

Now, I know I have some lengthy notes but I will try and keep this as short as possible so a small outline is an order

Act 1
Family Council Action Committee President Jerry Cox said that Act 1 was to 'curb a gay agenda at work in our state 'by petitioning the government via ballot to vote on a ban on unmarried cohabiting couples, hence GAY AND LESBIAN couples since AR passed Constitutional Amendment 3  in 2004.  

FCAC intervened to be a party in the case, fearing that the Atty Gen wouldn't do their utmost to defend the law, their motion to intervene was granted.

The Arguments Made to the Arkansas Supreme Court:

The State and FCAC Arguments:

The State and Family Council Action Committee (FCAC) argued that the ban was necessary to protect marriage in the state of Arkansas

The State and FCAC also said that the ban burdened no fundamental right as there was no right to adopt a child and thus is different from the court's decision in Jegley v. Picado (hereafter referred to as Jegley). It only proscribes cohabitation as a bar to adoption, it doesn't penalize cohabiting partners from having consensual sexual intercourse

That the ban does not violate Articles 8 and 21 of the AR Constitution--the due process clause.

Unmarried cohabiting relationships are less stable than married relationships, They put children at a higher risk for domestic violence and abuse than married relationships, and they have lower income levels, higher infidelity rates, and less social support than married relationships. This is why Act 1 is necessary.

They also maintain that Act 1 is in line with custody decrees where people sign non cohabitation agreements after a divorce. They also say that in Alphin v. Alphin AR has never condoned children living with unmarried couples because it is contrary to public policy

Ok..that's all the BS I can stomach right now.

Cole et al., Claims:

The one that stuck out the most is simply invasion of privacy and having to choose between raising a child and having intimate relations outside of marriage. The next claim that sticks out is in the event that a married couple wants to give custody of their children to a gay or lesbian couple they wouldn't be able to because of Act 1 thus interferes with their ability to plan for their children--I'm not sure how it's worded but that's the essence of the argument.

This blanket ban is harmful to children because it rules out parents unfairly instead of deciding on a case by case basis as DHS is supposed to do in all cases of adoption

The Court's Ruling
 Okay, to say that all the State and FCAC said is BS would be more than sufficient but I want to deal with some of the issues the Court also did.

1. The Court said that they will not make a decision as to whether adopting children is a privilege or a right. The Court doesn't distinguish between the two when ruling on if a civil right has been violated, they are there to look at the issue of the Constitutionality of the Proposed Initiative Act No. 1, not to determine whether adoption is a right or not. Saying either/ or will not make Act 1 Constitutional if it's a privilege and then Unconstitutional if it's a right. They gave an example citing Sherbert v. Verner (1963) 

2. The state argues that this case is different from Jegley because it doesn't penalize adults from having intercourse. The Court says No,  Quoting from the verdict on page 20 of the copy I read: We have already addressed this point in part in our discussion of how the burden of Act 1 is not appreciably different from that imposed by the criminal statute in Jegley. We now disagree with the State and FCAC on the significance of the burden. The intrusion by the State into a couple's bedroom to enforce a sexual prohibition is exactly what was prohibited by this court in Jegley v. Picado. The same is at issue here under Act 1.

And furthermore:
Thus, Act 1 directly and substantially burdens the privacy rights of "opposite-sex and same-sex individuals" who engage in private, consensual sexual conduct in the bedroom by foreclosing their eligibility to foster or adopt children, should they choose to cohabit with their sexual partner. The pressure on such couples to live apart, should they wish to foster or adopt children, is clearly significant

Next:
Act 1's blanket ban provides for no such individualized consideration or case-by-case analysis in adoption or foster-care cases and makes the bald assumption that in all cases where adoption or foster care is the issue it is always against the best interest of the child to be placed in a home where an individual is cohabiting with a sexual partner outside of marriage.

The next thing I say is that they note that AR DHS would not be allowed to make the final determination on which match is best for the child.

Another point they made is from a case in 1949: The court has said that when reviewing the constitutionality of an initiated act, it is to be treated as though it were an act of the legislature, because in adopting an initiated act, the people become their own legislature Jeffrey v. Trevathan 1949 (p.7)

I like this  because of the fact that when people can petition the ballot for a statewide initiative, the words of the AR Supreme Court ring clear like a bell...The people have become their own legislature and all initiatives and referendums should be looked at with such eyes. I always say that the will of the people can't be left unchecked by The US Constitution, and that includes the State Constitutions, which more often than not give greater freedoms than the US Constitution

3. This is a matter of privacy because the issue has to come up when you're adopting children. When doing so, you are to be an open book before Social Services.  The Court then mentions how this differs from Lyng v. Castillo, where it was determined by the Supreme Court in 1986 that in order for extended family to receive their own FS benefits they would have to move from the house shared with their other family members.
AR Supreme Court p. 18 says:  The Court held that no fundamental right was involved under these facts and that heightened scrutiny did not apply.  It further held that this statutory classification regarding eligibility for food stamps did not directly and substantially interfere with family living arrangements. The facts in Lyng do not evidence a direct assault on the privacy of cohabiting sexual partners such as we have in the case before us

4. The Court also said that in some divorce cases a new partner is not always disclosed to the court. They also don't have to be subject to the rigorous standard that adoptive parents have to go through. This threw out the argument of the non cohabitation agreement the State and FCAC mentioned

5. This is best said with a quote from the verdict--that even CHILD WELFARE workers said that there was no good reason for a ban:

Ed Appler, Child Welfare Agency Review Board (CWARB) member and President of Grace Adoptions, said in his deposition taken August 4, 2009, that, as a Review Board Member and as a social worker, he could not identify any child welfare interests that are advanced by Act 1.

Sandi Doherty, Division of Children and Family Services (DCFS) Program Administrator and former DCFS Area Director and County Supervisor, in her deposition taken November 17, 2009, stated that in her personal view Act 1 is not consistent with the best practices because it bars placement of children with relatives who are cohabiting with a sexual partner.

Marilyn Counts, DCFS Administrator of Adoptions, in her deposition taken December 9, 2009, agreed that she could not identify any child welfare interests that are furthered by categorically excluding unmarried couples from being assessed on an individual basis as to whether they would be a suitable adoptive parent.

John Selig, Director of DHS, in his deposition taken December 16, 2009, stated that in his personal opinion, it is not in the best interest of children to have a categorical ban on any cohabiting couple from fostering or adopting children because the case workers should have as much discretion as possible to make the best placement.

Moreover, counsel for the State and FCAC admitted at oral argument that some adults cohabiting with their sexual partners would be suitable and appropriate foster or adoptive parents, all of which militates against a blanket ban.

So with this: The very people who help couples through the adoption process say that there is no reason for this ban and even the State say that SOME could be suitable.   

Furthermore, the concerns raised by the State and FCAC and used as justification for Act 1's categorical ban of cohabiting adults, such as (1) unmarried cohabiting relationships are less stable than married relationships, (2) they put children at a higher risk for domestic violence and abuse than married relationships, and (3) they have lower income levels, higher infidelity rates, and less social support than married relationships, can all be addressed by the individualized screening process currently in place in foster and adoption cases

In addition, John Selig testified in his deposition that it cannot be determined whether a particular placement is better or worse for a particular child based solely on the marital status of the couple in the home.

6. Heightened scrutiny holds
For those of us who don't know what it is, wiki gives us a definition as follows:

Intermediate scrutiny, in U.S. constitutional law, is the middle level of scrutiny applied by courts deciding constitutional issues through judicial review. The other levels are typically referred to as rational basis review (least rigorous) and strict scrutiny (most rigorous).

In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.

The phrase "heightened scrutiny" has been used interchangeably with "intermediate scrutiny" but it is unclear if the two are actually legally interchangeable.

To pass, the law "must advance an important governmental interest, the intrusion must significantly further that interest, and the intrusion must be necessary to further that interest"

The Court said that Act 1 will be held to a higher standard (I submit it doesn't even pass a rational basis test--the most basic judicial review).

7. The ban is unconstitutional

The Court's words are on pp.23-24

By imposing a categorical ban on all persons who cohabit with a sexual partner, Act 1 removes the ability of the State and our courts to conduct these individualized assessments on these individuals, many of whom could qualify and be entirely suitable foster or adoptive parents. As a result, Act 1 fails to pass constitutional muster under a heightened-scrutiny analysis.

And the finishing touch, on p. 25

This case comes to us as an appeal from an order and judgment following motions for summary judgment filed by Cole, the State, and FCAC. We hold that Cole's fundamental privacy rights, which are implicit in the Arkansas Constitution, are substantially and directly burdened by Act 1's prohibition against the ability of cohabiting sexual partners to foster or adopt children. The State's compelling interest, no doubt, is protection of the welfare of Arkansas's children, but we further hold that under a heightened-scrutiny analysis, which is the standard that applies to this case, the least restrictive means of serving that interest has not been employed; nor has the application of Act 1 been narrowly tailored, as required.

Because we hold as we do, it is unnecessary for this court to address the remaining grounds espoused by Cole on cross-appeal for holding Act 1 unconstitutional under the United States Constitution or the Arkansas Constitution because to do so would be to issue an advisory opinion. See Howard, 367 Ark. at 66, 238 S.W.3d at 8-9.

My two cents
My words to Jerry Cox...if you want children to grow up in a family where their parents are married, you can take the first step by challenging Constitutional Amendment 3 passed by the voters in 2004.

This is how it tends to work, pass a mini DOMA by statute as IA did in 1998 or State Constitutional Amendment like AR did and then pass a law via Legislature or ballot initiative like UT did to prohibit unmarried couples from adopting, that way you hurt the children even more!

It won't hold up in court because you can say things in a popular referendum/ballot initiative that you can't defend without evidence. Why did Magghie Gallagher refuse to testify in Perry v. Schwarzenegger? Because she couldn't defend all her nonsensical statements of how gay parents and marriages ruin our children and marriage (imho no one can ruin a marriage other than the people in it). She cited that she'd be targeted--she didn't mention by whom--for her views on marriage. I'm sorry but when you throw dirt at someone, don't be surprised when a mudslide is headed your way. When you testify , I'll make sure I write about it and see how you skillfully defend your views against the evidence! I won't hold my breath for that though!

Love You All
Until The Pen Strikes Again!