Arkansas Department of Human Services v. Cole
2011 Ark. 145
| Ark. | 2011Background
- Arkansas voters enacted Act 1 (Ark. Code Ann. § 9-8-301 to -305) banning adoption/foster care by individuals cohabiting outside marriage; Act 1 took effect Jan. 1, 2009.
- Cole and others filed suit challenging Act 1 as violating privacy rights under Arkansas Constitution and other constitutional provisions.
- Circuit court found Act 1 unconstitutional under Arkansas Constitution, granting summary judgment on counts related to privacy and dismissing others; concluded burden on privacy was direct and substantial and applied heightened scrutiny.
- State and FCAC sought review; the court affirmed the circuit court’s finding of unconstitutionality under Ark. Const. privacy rights; cross-appeal on other issues deemed moot.
- The Supreme Court of Arkansas affirmed on direct appeal, held Act 1 unconstitutional under state privacy rights, and did not address cross-appeal issues as moot.
- Affirmed; cross-appeal moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Act 1 burden on private sexual privacy is a fundamental right issue | Cole argues Act 1 burdens fundamental privacy rights implicit in Ark. Constitution | State/FCAC contend privacy not a fundamental right and Act 1 is permissible | Yes; Act 1 burdens fundamental privacy right under Ark. Constitution |
| Whether heightened scrutiny applies to Act 1's challenged provisions | Cole asserts heightened scrutiny due to fundamental right burden | State/FCAC argue either rational basis or non-fundamental burden | Heightened scrutiny applies; Act 1 fails |
| Whether Act 1 is narrowly tailored under least restrictive means | Act 1 is not narrowly tailored; individual assessments would suffice | Categorical ban justified by child welfare goals | No; not narrowly tailored under heightened scrutiny |
| Whether the cross-appeal issues are ripe or moot | Cole seeks review of remaining constitutional claims | Issues moot since privacy ruling resolves the case | Moot; no advisory opinion on other grounds |
| Whether the case should be remanded or dismissed for lack of state interests | State asserts compelling interest in child welfare | No need to address due process/equal protection if privacy ruling controls | Not addressed as unnecessary after ruling on privacy rights |
Key Cases Cited
- Jegley v. Picado, 349 Ark. 600 (2002) (fundamental right to privacy implicit in Ark. Const.; privacy includes private, consensual sexual relations; strict scrutiny applied)
- Sherbert v. Verner, 374 U.S. 398 (1963) (burden on free exercise may violate rights when it forces choice between beliefs and benefits)
- Lyng v. Castillo, 477 U.S. 635 (1986) (no direct/substantial burden on a fundamental right; household definition not substantial interference)
- Alphin v. Alphin, 364 Ark. 332 (2005) (best interest of child standard; case-by-case analysis; cohabitation not per se disqualifying)
- Haase v. Starnes, 323 Ark. 263 (1996) (jurisdiction caution re deciding constitutional grounds beyond necessary decision)