Arkansas’s Proposed Initiative Act No. 1 makes California’s Prop 8 look like puppies, chocolate, and rainbows. Or something.
That state’s Proposed Initiative Act No. 1, approved by nearly 57
percent of voters last week, bans people who are “cohabitating outside
a valid marriage” from serving as foster parents or adopting children.
While the measure bans both gay and straight members of cohabitating
couples as foster or adoptive parents, the Arkansas Family Council
wrote it expressly to thwart “the gay agenda.” Right now, there are
3,700 other children across Arkansas in state custody; 1,000 of them
are available for adoption. The overwhelming majority of these children
have been abused, neglected or abandoned by their heterosexual parents.
That’s obviously absurd as a policy matter. More absurd, if you believe in a concept of relative absurdity, I’d probably argue. But here’s my immediate reaction, which is also a question for any of our attorney/etc. readers who know this stuff better than me: isn’t that plainly unconstitutional as a matter of federal substantive due process?
Accidental Blogger 
4 responses to “Arkansas’s Version of Prop 8 (Joe)”
so many children would find homes…whats the harm if couples living together without a valid marriage license adopt them?
What does a license prove anyways? How long does it take to get divorced?
By the way are angelena jolie and Bradd Pitt married? how come they are allowed to adopt from the world over?
LikeLike
You ask: “…isn’t that plainly unconstitutional as a matter of federal substantive due process?” The answer is “no, it is not unconstitutional.” Indulge me and read the Constitution just once while keeping uppermost in your mind what the framers meant it to say and mean (original intent). Deciding who can and who cannot be a parent is an obvious “states rights” issue. Those who don’t like the Arkansas decision have 49 other states where they are guaranteed the right to live by the Constitution, as long as they abide by those states’ laws.
LikeLike
Expunger:
I’m not sure what point you’re trying to make. Original intent is surely one theory of interpretation, although highly discredited; one could perhaps actually put you in the original-public-meaning category, which would be more charitable to you. Without conceding the point, I’ll even suggest that you might, as that sort of originalist, plausibly contend that substantive due process does not legitimately exist. That would, however, be useless; you might as well respond that elves have pointy ears. The job of the judiciary to say what the law is, blah blah blah, and surely even Justice Scalia (to take the obvious conservative/originalist) would surely concede that cases like Lawrence v. Texas are, at present, good law (i.e. controlling constitutional law).
Moreover, it’s not at all clear why deciding who can and cannot be parents should be obviously a states’ rights issue. Unless your contention is that any state may regulate any personal conduct within its borders as it sees fit?
LikeLike
Original intent is often a misinterpreted doctrine in the judiciary’s ideological circles. Progressive in discourse, paradigm shifts and societal changes often take precedence and influence over original intent for the reason that laws are created to meet the present necessities, not the pasts’.
LikeLike