Out in the Cole

A couple of years ago I ranted about Arkansas' awful Act 1, which forbade gay and straight unmarried couples, as well as single people, from adopting children. I argued that it was a hollow gay-bashing measure that would lead to more kids ending up in foster care with no discernible benefit to anyone except moralizers without souls.

A Circuit Court judge apparently had a similar reaction to the law. Think Progress reports that it was struck down in court today. The Arkansas News has more. The case is Cole v. Arkansas, and I'll post the decision once I find it online. Should it go to the full 8th Circuit, it'll be Arkansas v. Cole.

The judge ruled that the law ran afoul of two Constitutional principles. One, it violated the right to privacy of the adopting couples by placing an undue burden on the private relationship between two individuals. Two, it violated the couples' right to equal protection by denying them a right to adopt children that is granted freely to other couples. The law, on its face, only prevents couples who do not possess a certain legal status (marriage) from adopting, but because some couples (same-sex ones) are not allowed to possess that legal status, the right to adopt is essentially permanently denied same-sex couples while opposite-sex couples will be allowed to adopt should they choose to do so. The right to adopt, then, has been denied to certain couples while granted to other couples, and on a basis wholly unrelated to the welfare of the child. It's pretty easy to see how that's an equal protection violation.

First off, in the wake of Heller and Citizens United, and in light of the health care reform lawsuits being staged by thirteen-plus states, I don't want to hear any whining from conservatives about "judicial activism" or "overturning the will of the people." The Constitution says what it says, and the majority doesn't have the right to ignore the Constitution if they find its wording inconvenient. I don't give a damn how popular a law is, if it violates the Constitution then it ought to be thrown out. Anyone who doesn't understand this basic principle should have their registration revoked because they're too damn stupid to vote.

Second, Arkansas, should this case stand (which I doubt it will, honestly) has a couple of possible courses of action here. One, they can allow same-sex couples to marry. That gets around the equal-protection issues by offering adoption to all couples predicated upon reaching a certain legal status that is open to all. Two, they can re-instate the right to adopt to all couples, regardless of marital status.

But think for a moment of the logic here. You can't deny a state benefit to a couple if you grant that benefit to other couples, and the nature of one's private relationship is not a reason to deny that benefit. In this case, the benefit is the ability to adopt a child, but there are tons of other benefits that Arkansas and other states bestow exclusively on married couples. Of all these benefits, adoption is probably the most restrictable because it involves a third party (the child) whose welfare is paramount. Other benefits, such as the right to file taxes jointly and the right to survivor benefits, do not involve a third party. So if we rule that the right to adoption must be bestowed equally on all couples, that implies that pretty much every other benefit offered to married couples must be offered to all couples. Thus, either the legal status of marriage must be open to all couples, or all these benefits must be the result of obtaining a separate legal status that is open to all couples (such as a civil union).

That's why you'll be hearing lots more about this case in the coming months. Essentially, should it stand, all states will be Constitutionally required to offer same-sex civil unions with all the benefits of marriage. That Constitution can be a bitch sometimes, can't it, wingnuts?

(One final note - it's far from clear to me that Arkansas will appeal this decision. The current governor, Mike Beebe, is none too fond of Act 1, so he might just quit enforcement and ask the law to be changed.)