Half of Arkansans believe that sex-sex relationships should not be afforded legal recognition, including recognition in the form of a civil union or domestic partnership. Further, Arkansas is one of thirty states to constitutionally define marriage as the legal union between a man and a woman. Nonetheless, the gay and lesbian civil rights movement has been afforded protection in the courts through Arkansas Supreme Court decisions protecting same sex couples' rights.
Starting in 2002, the Arkansas Supreme Court has provided at least some protection to same sex couples and their families through decisions where the Court could have declined to do so. Specifically, in 2002 the Court struck down a criminal statute which outlawed same sex sodomy, holding that the Arkansas constitution protected private, consensual, non-commercial acts of sexual intimacy. One year later, the Arkansas Supreme Court reversed a custody order based on the alleged negative perception resulting from the child's mother cohabiting with a lesbian. Seven years after Arkansas voters approved a marriage amendment, in 2011, the Arkansas Supreme Court allowed a former same sex partner of a mother to have visitation with her former partner's biological child, whom the same sex couple had planned to raise together before their separation. Also in 2011, the Arkansas Supreme Court struck down a voter-initiated law aimed at preventing unmarried, cohabiting couples from adopting or fostering children because of its transparent targeting of gays and lesbians.
This article examines each of the aforementioned cases, and considers the protections provided to same sex couples as a result of each decision. Despite public hostility against same sex couples and a constitutional amendment forbidding recognition of same sex marriage, the author concludes that same sex couples in Arkansas can take solace that the Arkansas Supreme Court has continued to recognize their rights in the area of domestic relations, even when the legislature and public at large refuse to do so.
Anthony L. McMullen,
A Brief Summary of Decisions from the Arkansas Supreme Court Affecting Gays and Lesbians,
34 U. Ark. Little Rock L. Rev. 337
Available at: http://lawrepository.ualr.edu/lawreview/vol34/iss2/3