The Arkansas Supreme Court decided, 7-0, that there was no rational basis to prevent gay people from being foster parents or adopting through DHS.
Now we have an amendment that says, people who are cohabitating, can't be foster parents or adopt.
I know that to most people opposed to Act 1, co-habitation is just code word for gay couples. But, the courts see it differently. I'm curious how anyone would challenge act one. I haven't thought it all through yet --- but if feel the Court could probably find there is a rational basis to forbid co-habitation. ( even if I personally disagree) Here, I just want to point out a few cases where the courts have discussed co-habitation in general.
To begin, of course, there is no law that says you can't live with someone else, or obviously can't raise children together if you aren't married.
In the specific context of custody battles in divorces, co-habitation has traditionally not been looked upon favorably. The Arkansas Supreme Court, has been very careful to show that it is a parent's cohabitation with a romantic partner it is opposed to, not the parent's sexual orientation.
It is very common for divorce courts to include language in the custody order that such as "neither parent may have members of the opposite sex to whom they were not married stay overnight while the children were in their care." The Court has frequently held that the purpose of such an order is to promote a stable environment for the children, and is not imposed merely to monitor a parent's sexual conduct. The emphasis here is stability more than the fear of the child being aware of "unchaste conduct." But, in other cases, Arkansas Courts have also held that " a parent's unmarried cohabitation with a romantic partner, or a parent's promiscuous conduct or lifestyle, in the presence of a child cannot be abided." Again, notice the emphasis on promiscuous conduct. Is a long-term relationship promiscuous? Probably not.
In 2007, in Holmes v. Holmes, the Court considered a case where a court awarded custody to a father over his ex-wife, who was a lesbian. The court seemed to go out of its way to say it was not affirming the circuit court because of the mother's sexual orientation. The court ruled in favor of the father because it agreed with the circuit court that "exposure to appellant's sexual partners was detrimental to (the child's) welfare." The facts were that the mother had six different sexual partners in a four-and-a-half year period. She lived with her various partners despite an explicit court order that forbade extramarital cohabitation in front of the child. While in no way does the court overrule a past cases, it made clear that it did not need to consider sexual orientation to make its ruling.
The court essentially distinguished its ruling from that in Taylor, which is interesting in itself. In Taylor, a 2003 case, the Ark. Sup. Ct. considered a case where the mother had a female roommate and there was no evidence they were in a romantic or sexual relationship. The father argued that "the mother's homosexuality would adversely affect an otherwise happy and well-adjusted child." But the facts in Taylor were that the mother was not in a sexual relationship with the woman she lived with. The Court also rejected an argument that the fact that the mother lived with a woman would subject the child to teasing, and that the potential for teasing in the future is sufficient to constitute a material change in circumstances. Because the father could not prove there was any harm from the child living with the mother and her roommate, the mother maintained custody.
That doesn't mean the court approved of same sex couples at all of course, and the Court re-affirmed that it would not be in a child's best interest for a parent to continue cohabitating with another adult with whom she admitted being romantically involved.
In a different Taylor case from 2001, the Court held:
[T]he trial court's use of the non-cohabitation restriction is a material factor to consider when determining custody issues. Such a restriction or prohibition aids in structuring the home place so as to reduce the possibilities (or opportunities) where children may be present and subjected to a single parent's sexual encounters, whether they be heterosexual or homosexual.
So my only point is that there is a lengthy tradition of the Ark. Sup. Ct. looking disfavorably on co-habitation. There are still significant other issues as to Act 1 that need to be explored more such as equal protection and disparate impact. But, I can barely spell disparate, I'll leave that to the constitutional types.