The state of Arkansas has a controversial history, along with many other states, regarding laws and policy toward LGBT individuals. Today, even though many of these laws have been overturned, are unenforced, or have been changed, there are still rights and protections for LGBT Arkansas residents still to be won. Today, LGBT people in Arkansas face legal challenges that are not experienced by non-LGBT people. What follows is a brief history of LGBT law and policy in the state of Arkansas.
What the Law Says about Being LGBT in Arkansas
From early in its history, LGBT people were singled out and discriminated against in Arkansas law – homosexuals in particular. As early as 1838, Arkansas instituted a statute stating that any person convicted of “sodomy or buggery” would be imprisoned for a period of time ranging between 1-21 years. This statute remained on the books unchanged for more than a century before being amended in 1977. The amendment clarified the statute to penalize only homosexual acts or sexual acts between humans and animals, while also reduced the charge from a criminal charge to a misdemeanor.
This 1977 amendment remained until the early 2000’s, when a series of lawsuits challenged the constitutionality of the ban, stating that it violated fundamental rights of privacy. After several rulings, stays, and appeals, all laws against same-sex sexual contact were repealed in 2005 by a unanimous vote in both the state House and Senate.
Today, while sex acts remain legal between consenting adults of any gender, Arkansas state law contains no protections against discrimination in the workplace on the basis of sexual orientation or gender identity. Transgender individuals in Arkansas are permitted to change the gender marker on their birth certificate after verifying via a court order that they have undergone sex reassignment surgery.
What the Law Says About Same-Sex Marriage in Arkansas
Like many other states, Arkansas has historically not allowed same-sex marriages. In 2004, Arkansas joined several other states in adopting a constitutional amendment explicitly banning same-sex marriage, as well as any form of civil union or another joining substantially similar to marriage.
Attempts to repeal this amendment began in earnest by the Arkansas Initiative for Marriage Equality in 2012, which proposed a new amendment upholding marriage equality. A second group, Arkansans for Equality, submitted a similar ballot measure in 2014. Both measures were rejected by the state Attorney General, citing working issues. However, the measures were later accepted but never appeared on the ballot.
In 2014, a preliminary ruling in the case of Wright v. Arkansas found the marriage ban unconstitutional, but the final ruling in the same case upheld the ban. In federal court the same year, the case of Jernigan v. Crane found the ban unconstitutional and stayed the earlier ruling pending appeal.
The outcome of these cases, however, would become inconsequential because, in June of 2015, the United States Supreme Court ruled that nationwide bans on same-sex marriage were unconstitutional in the case of Obergefell v. Hodges, legalizing same-sex marriage in the state of Arkansas and in every other state in the country.
In 2017, however, the fight against same-sex marriage continued in Arkansas, as the state legislature brought forth a resolution calling for a same-sex marriage ban in the United States Constitution. Ultimately, this resolution was rejected. Later that same year, a bill was introduced that would effectively ignore the findings of Obergefell v. Hodges and enforce the state’s marriage ban, but the bill was withdrawn.
LGBT Adoption Rights in Arkansas
In 2008, the state of Arkansas approved a ballot measure prohibiting couples who are not legally married from adopting children or providing foster care. Then, in 2011, in the case of the Arkansas Department of Human Services V. Cole, the state’s Supreme Court declared the measure unconstitutional by unfairly and directly impacts the rights of individuals, LGBT and otherwise, who choose to cohabit with a partner without getting married.
As of the Supreme Court ruling in 2015, since same-sex couples are now able to legally marry in Arkansas, they enjoy the same rights to adoption, second-parent adoption, step-parent adoption, and foster care that any married couple would enjoy.
In December of 2015, a birth certificate law in Arkansas was deemed unconstitutional for unfairly discriminating against lesbian adoptions. The law allowed for the names of heterosexual, non-biological fathers to be listed on a birth certificate while refusing the same right for homosexual non-biological mothers. The measure was found to be in violation of Obergfell v. Hodges and was struck down. Since then, same-sex couples have been treated equally under the law in birth certificate issuance.
LGBT Attorneys Fighting for Your Rights
If you are an LGBT individual who is going through a divorce, is considering adoption, need to pursue estate planning, or have any other questions regarding LGBT marriage and the law in Arkansas, contact an LGBT attorney today.