The View From LL2

Earlier this week, President Obama issued a memorandum on “Respecting the Rights of Hospital Patients to Receive Visitors and to Designate Surrogate Decision Makers for Medical Emergencies.” The memo requires all hospitals that participate in Medicaid and Medicare to (1) Allow patients to designate who is able to visit them, and (2) Follow the advance medical directives of their patients, such as durable powers of attorney and health care proxies.

Yesterday, a Circuit Court Judge in Arkansas issued an order striking down an Arkansas law that prohibits any unmarried person who has a non-platonic relationship with someone they live with from either adopting or fostering a child.

These two decisions are being trumpeted as victories for gay rights, as they should be. But the gay rights promoted by these decisions are only a component of the much broader category of human rights that are being recognized here — the associational rights of all persons. In other words, the decisions recognize peoples’ right to establish interpersonal relationships in the manner that best serves their individual needs, and not in the manner dictated by social tradition. In a free society, we should be free to choose which relationships we want to have with which people, and the degree of importance to be attributed to each of those relationships. The government has no business in deciding on everyone’s behalf which sorts of relationships “count” — i.e., only those between kin and those between opposite sex spouses.

The Executive Memorandum issued by Obama was a no-brainer that should have been done decades ago. Hospitals do not operate on the free market — people just don’t get to pick and choose hospitals based upon the associational rights they recognize. In the case of sudden injury, people can be transported to a hospital not of their choice. Or, in the case of rare conditions that require a specialist facility only found in a handful of hospitals across the country, a patient will have no effective ability to choose a hospital based on whether or not they will allow a partner to visit.

In a case like that, I have no problem with the government ordering hospitals to respect patient’s wishes. Hospitals that mandate only kin are allowed to visit are substituting a patient’s actual preferences (or even contractual specifications!) with an idealized, moralistic vision of who a patient should prefer to visit them.

The issues raised by the Arkansas Act — which is “An Act Providing That An Individual Who is Cohabitating Outside of a Valid Marriage May Not Adopt or Be a Foster Parent of a Child Less than Eighteen Years Old” — are not quite so cut and dry. Although the state has no legitimate interest in dictating people’s personal relationships, the state very much does have a legitimate interest in protecting the best interests of the children placed in its care. The trick, then, is to prevent the government from using its interest in children’s welfare as a means of infringing upon rights they have no business messing with.

In Cole v. Department of Human Services, the judge decided that the U.S. Constitution was not implicated, but that the statute violated the Arkansas state constitution’s protection of privacy rights.

Under the U.S. Constitution, the right to adopt or foster a child is not fundamental, and that cohabitating people are not a not a suspect class. Therefore, rational basis review was to be applied. Therefore, the Arkansas Act could only be examined under rational basis review, which means the ban on adoption by a cohabitating person is constitutional so long as it is ‘rationally related to a legitimate government purpose.’ This is a very easy test to pass — under rational basis review, even if it’s very obvious that the legislature was talking out of it’s ass when it made up a piece of legislation, so long as a judge can squint at it and conceive of some sort of logical purpose that the legislature could have had, the statute will be allowed.

The state’s theory was that “cohabitating environments, on average, facilitate poorer child performance outcomes and expose children to higher risks of abuse.” Although this is an overbroad and less than scientific assumption, under a rational basis review, it’s sufficient. I’m a little skeptical, however, of the judge’s blithe assumption that rational basis review applies here.

First, the idea that no “fundamental right” is at stake doesn’t square with the judge’s analysis under the Arkansas constitution. The Arkansas Adoption Act was invalidated for violating the “fundamental privacy right to private, consensual, non-commercial sexual activity” under Arkansas’ constitution. This sounds awfully similar to the same fundamental privacy right protected by the Federal Constitution that the Supreme Court has recognized in sodomy and contraception cases.

Second, I’m not completely buying the idea that “cohabitating couples” are not a suspect class. Under the Equal Protection clause, federal laws addressing “illegitimates” are reviewed under an intermediate level of scrutiny. I wonder if perhaps this precedent could be turned around and used to advance the argument that the parents of out of wedlock kids are themselves semi-suspect class. After all, at its heart, the court’s illegitimacy jurisprudence truly is truly one about associational rights — i.e., whether or not the government can decide, ex ante, for all people, that relationships with out of wedlock children are not as significant as relationships with children from wedlock.

So given all that, I’m not really convinced that the judge had to decide this case based upon the Arkansas Constitution and not the U.S. Constitution. Then again, this would be a pretty effective way of possibly insulating the case from review by SCOTUS…

Constitutional law aside, the Judge’s invalidation of the Arkansas Adoption Act was not specifically about gay rights, but about the private association rights of all persons. For instance, in the following scenario, a straight person is just as adversely effected by the law: Say that both of a child’s parents die. The child’s aunt then wants to adopt her niece or nephew, but she is living with her long term boyfriend, whom she has been a stable relationship with for ten years. Under the Arkansas Adoption Act, she is prohibited from doing so.

It is not the state’s place to mandate the interpersonal relationships people must have in order to enjoy equal protection under the law. Gay or straight, the government has no legitimate interest in who we decide to invite to our holiday dinners or who we choose to make a home with. Although I’m happy to see ever greater protections afforded to gay Americans, that is only the beginning, not the end, of the fight against governmental coercion in peoples’ personal relationships.

-Susan