Arkansas v. Cole: If it’s a fundamental desire, it must be a fundamental right

Published Date Written by Erik L. Smith

A statute that unduly burdens a fundamental right is unconstitutional for violating that right. If you do not need, and have not yet vested, some benefit essential to your life, then the “burden” on the fundamental right in losing that benefit cannot be “undue.”


Unfortunately, courts are twisting that logic into a rule that might be restated as: one’s fundamental right is burdened if they must forego it to gain anything they really want. The weird logic is infecting adoption law through the myth of entitlement.


For example, in Ark. Dept of Human Svcs v. Cole, 2011 Ark. 145, the Arkansas Supreme Court analyzed a state statute (“Act I”) that prohibited children from being adopted by anyone who was cohabiting with a sexual partner outside of marriage. Supposedly, the law unduly burdened the potential adopter’s fundamental right to engage in private, consensual sex because it was conditioned on foregoing the privilege of adopting.


In Cole, three groups challenged Act I: unmarried adults who “wished” to adopt, adult parents who “wished” to direct the adoption of their children should the parents die or become incapacitated, and the biological children of those parents. Those groups were the “plaintiffs.” The court noted that it must “sustain a statute unless it appears to be clearly outside the scope of reasonable and legitimate regulation.” Cole citing City of Little Rock v. Smith, 163 S.W.2d 705 (Ark. 1942).


The Cole court relied on two cases to support its finding of unconstitutionality, Sherbert v. Verner, 374 U.S. 398 (1963) and Shapiro v. Thompson, 394 U.S. 618 (1969). In Sherbert, the plaintiff, a Seventh-Day Adventist, was fired because she refused to work on Saturday. Consequently, she filed for unemployment benefits but was denied because state law made persons ineligible for benefits if they failed to accept suitable work when offered to them. The state court affirmed that determination. The United States Supreme Court reversed, reasoning that the plaintiff’s ineligibility derived solely from the practice of her religion, “but the pressure upon her to forego that practice forced her to choose between following her religion (thus forfeiting benefits) and forsaking her religion to accept work. That was akin to imposing a fine against the plaintiff for her Saturday worship.


In Shapiro, a state law conditioning the receipt of welfare benefits on a residency requirement was unconstitutional for unduly burdening one’s fundamental right to interstate travel. That welfare benefits were a “privilege” did not save the infirmity.


Given those cases, the Court in Cole concluded that because the “right to engage in private, consensual sexual activity [was] conditioned on foregoing the privilege of adopting….[Cohabitators] must choose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt…or forego sexual cohabitation and, thereby, attain eligibility to adopt….” Thus, Act I was unconstitutional for unduly burdening the fundamental right of private, consensual sexual intimacy. Cole at *5.


That was erroneous. Being “eligible” to adopt does not mean being “entitled” to adopt. And except for cases where significant relationships have formed between the potential adopter and the child, a private person does not “need” to adopt. Those factors distinguish Verner and Shapiro critically from Cole. In Verner, the plaintiff had to choose between foregoing her fundamental right to practice her religion and the life necessity of receiving unemployment benefits to which she was already entitled. Because income was a life necessity, the choice was daunting and thus unduly burdensome.


Similarly, in Shapiro, the person who qualified for welfare benefits had to choose between gaining that imperative income and traveling (or moving) to another state. Thus, the state could not hide behind the fact that welfare benefits were merely a privilege and not a right.


Cole did not present that situation. No one has a fundamental right to adopt. And the privilege to adopt is not vested until a court orders the adoption. Nor is adoption typically, and certainly not in the Cole plaintiffs’ case, a life necessity. In fact, the plaintiffs in Cole only “wished” to adopt. Thus, they were not forced to choose between two fundamental rights or forced to forego an imperative necessity or privilege at the cost of a fundamental right. In Shapiro and Verner, the benefits were a privilege that the plaintiffs greatly needed and were already entitled to. In Cole, adoption was a privilege the plaintiffs merely wished for and were not entitled to.


Moreover, the claim of the plaintiffs who wished to have their children adopted should they die, and respectively their children’s wish to be adopted in that circumstance, was premature (unripe for review). Those plaintiffs merely presented a hypothetical situation, with no special reason to believe that they would soon die or become incapacitated. Nor was it clear why the children would need to be adopted. Children do not necessarily need to be adopted when their parents die.


Unlike the welfare and unemployment benefit eligibility of the plaintiffs in Verner and Shapiro, where the privilege of receiving benefits vested with eligibility, the privilege of adopting does not vest until a court orders the adoption. Eligibility in adoption merely means that one maybe considered for a potential adoptive placement. Millions of people qualify for that eligibility, but the factors of child’s best interest, the supply of potential adoptees, and competition between potential adopters distinguishes the privilege fundamentally from that of receiving unemployment compensation, which one has paid into as insurance. Requiring the plaintiffs in Cole to show their commitment to adoption by marrying or becoming single dwellers is therefore not a burden that can be called “undue.” The plaintiffs would lose only something they wish for, not something they needed or were entitled to.


The proper analysis therefore is whether the statute violated equal protection under the rational basis standard. The Arkansas law did not violate equal protection because the state could reasonably have concluded that unwed, single dwellers and married couples were more likely to be stable than unmarried, cohabitating couples. A person who has a live-in sexual relationship with another person will likely assume a de facto parental role. The child will form a relationship with that person without protection against separation. If the couple breaks up, the de facto parental figure is legally and physically gone, a problem not encountered with a separated married couple or with a single person who is not cohabitating with a sexual partner. The legislature can choose to let cohabitators adopt to help alleviate that problem, but so far the Arkansas legislature has chosen not do so. Otherwise, stability in adoption is a legitimate state goal. Act I cannot be said to be akin to imposing a fine against the plaintiffs for their sexual life. Thus, Act I was not “clearly outside the scope of reasonable and legitimate regulation.”


Cole makes concrete the notion held by many childless and other couples that they deserve to be adopters. Cole advances the harmful fantasy of ‘somewhere out there is a child for me.’ Cole also waters down the Arkansas Constitution, and encourages the same in other states, by advancing the view that any great desire a person has that may conflict with a fundamental right infringes on the “right to privacy” and therefore deserves strict scrutiny analysis. I ask other states to find Cole unpersuasive.

The Ohio Putative Father Registry–the WHAT?

I am a single man. Yet I had been in Ohio for over a year before hearing of the Ohio Putative Father Registry, and then only in a Probate Law class. The professor was covering how a child could be adopted without the birth father's consent. "ORC 3701.061: A man who has sexual intercourse with a woman is on notice that if a child is born as a result and the man is the putative father, the child may be adopted without his consent pursuant to division (B) of section 3107 of the Revised Code." That section required the man sign the Putative Father Registry within thirty days after the birth to get notice of the adoption.


Ohio Putative Father Registry: The Basics

Unwed fathers are entitled to notice of petitions to adopt their biological children. Yet many fathers lose this right by not registering timely with the Ohio putative father registry (PFR).1R.C. 3107.062. Because adoptions are probate proceedings, lawyers practicing juvenile, domestic relations, or traditional probate law may not understand how the Ohio PFR applies.  At initial consultations then, attorneys may omit counseling fathers about the registry and refer them to attorneys with more specialized experience. But the strict registration deadline, and often unknown deadline date, demand that the father register immediately. Thus the attorney should consider counseling the client about the PFR and help him register that day before referring him. This article gives the information needed to do that.

Preventing Your Infant Child From Being Adopted Without Your Consent


Consult an adoption law or family law attorney. Otherwise: An unwed father has no absolute right to veto an adoption. You must take action to preserve your rights. Whether the mother is considering adoption or not, an unwed father should, as soon as possible and preferably before the birth:

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