Within an hour of the news that the Arkansas Supreme Court had overturned a state law that banned unmarried couples from adopting or fostering children, Utahns were calling the American Civil Liberties Union office to see what the ruling means for them.
The Arkansas law, approved by the state’s voters in 2008, was patterned after Utah’s, says Darcy Goddard, legal director of the ACLU of Utah.
"They assumed Utah’s law would be litigation proof. And they were wrong," Goddard says.
But that doesn’t mean a challenge to Utah’s law could succeed just yet, Goddard notes. (The state ruling in Arkansas does not affect Utah’s statute.)
The Arkansas ruling relied on a legal precedent that does not exist in Utah. In Arkansas, courts have said that the right to privacy in the state’s constitution includes the right of individuals to engage in private, consensual sex without government intrusion. (Unlike Arkansas, Utah’s anti-sodomy laws stayed on the books until the U.S. Supreme Court invalidated such statutes in 2003 with Lawrence v. Texas.)
The Arkansas adoption law, Associate Justice Robert L. Brown wrote in the Arkansas Supreme Court’s opinion issued on April 7, conditions the "fundamental right" to engage in private, consensual sexual activity on forgoing the privilege of adopting or fostering children.
"The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic," Brown wrote. "They must choose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation."
In Utah, a similar legal precedent may need to be in place for a challenge to the state’s adoption law to be successful, Goddard says, "but it is definitely a call to arms for Utahns to start building the basis in case law."
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