The Arkansas Supreme Court heard arguments March 17 in a case to determine whether the state constitution will allow a law banning any person cohabiting with a sexual partner outside of marriage from adopting or foster a child. It is a case some legal observers expect could end up before the U.S. Supreme Court.

The Arkansas law, Act 1, was passed by voter referendum in November 2008, the same month California voters passed Proposition 8 to ban same-sex marriage. Shortly thereafter, the American Civil Liberties Union (ACLU) and the ACLU of Arkansas challenged Act 1 in court.

In April 2010, a state circuit court overturned Act 1, saying it violates the Arkansas Constitution. It dismissed plaintiffs’ claims that the law also violates their rights under the United States Constitution.

The state, along with the Family Council Action Committee—the conservative group that led the petition drive for Act 1—appealed the case, Arkansas Dept. of Human Services and Family Council Action Committee v. Sheila Cole Et Al., to the Arkansas Supreme Court.

Plaintiffs include a lesbian couple who adopted a special-needs child before Act 1 was passed and wants to adopt another child now; a lesbian grandmother who wants to adopt her grandchild, who is currently in state care; three teenagers in the foster care system awaiting placement; and several married opposite-sex couples whom Act 1 prevents from designating certain friends or relatives to adopt their children in the case of the parents’ deaths.

The plaintiffs say that Act 1 violates their rights to equal protection, due process, and the right to privacy under the state constitution.

The defendants claim that Act 1 is necessary to protect children.

Defense lawyer Byron Babione, representing the Family Council Action Committee, also told the court that the issues in the case were part of the state’s larger policy of defining marriage as between a man and a woman. Act 1, he said, serves to encourage marriage and to channel children into “home environments where they do best” and are “less likely to be subject to risks.”

Attorney Garrard Beeney, arguing for the plaintiffs, said Act 1 does not serve the purpose of encouraging marriage because it does not exclude single people from fostering—and it does exclude gay people, who cannot marry in the state.

The heart of Beeney’s argument, however, was that two previous state Supreme Court rulings have held that certain actions similar to the ones in this case violate the state constitution.

In a 2006 case, Department of Human Services v. Howard, the court overturned a state policy that had banned gay people from fostering or adopting children. The state supreme court ruled that the policy excluded gays “based on morality and bias,” and the facts of the case showed no correlation between the welfare of foster children and “the blanket exclusion” of gay people.

And in the 2002 case, Jegley v. Picado, the court recognized the “fundamental right” to intimate relations in the home, as the U.S. Supreme Court did a year later in the landmark Lawrence v. Texas.

Two of the justices who authored the majority and concurring opinions in Howard — Donald Corbin and Robert Brown– also heard the Cole case, as did Chief Justice Jim Hannah, who concurred in Jegley. Neither of the dissenting judges in Jegley remains on the seven-member bench.

Act 1, said Beeney, forces couples to choose between the fundamental right to intimate relations, recognized by Jegley, and their desire to raise children. The Act is therefore a “direct” and “substantial impingement” on that right. It can only stand if the government can identify some “compelling” purpose for it and the law is “narrowly tailored” to accomplish that purpose.

Beeney argued this was not the situation with Act 1. He pointed out that, in 2008, before Act 1 passed, DHS itself rescinded its policy of banning unmarried cohabitors from fostering or adopting. And members of DHS—including the director—testified in the lower court that the Act serves no child welfare purpose.

Several of the justices’ questions to both Babione and Beeney focused on whether the Act should be evaluated based on “heightened scrutiny,” which requires a higher justification, or the lower “rational basis” standard.

The lower court found that Act 1 violated the fundamental right to privacy under state law and should thus be evaluated using strict scrutiny as was Jegley. But the court also said that it did not violate any such right under federal law.

The plaintiffs say that heightened scrutiny should apply, even though, as Beeney noted, Act 1 also “miserably fails,” to demonstrate even a “rational basis,” and actually harms children by keeping them in state care when otherwise qualified people are willing to take them into their homes.

Babione, however, said the protection of children was a sufficient “rational basis” for the Act, and that having to choose between cohabiting and fostering represented only an “indirect, limited burden” on the right guaranteed in Jegley.

Several justices, Brown in particular, pressed Babione on that point. Babione responded that Jegley does not punish cohabitation, and that the interests of children are “paramount.”

Brown then asked him why the state’s extensive screening process for foster parents was not enough to evaluate candidates.

Act 1, Babione responded, serves the purpose of filtering out the “highest risk” people—although he admitted the system is “not foolproof” and might overlook some qualified parents.

Deputy Attorney General Colin Jorgensen agreed, telling the court, “No screening system is perfect.” Because the DHS system is understaffed, he said, it ends up with better applicants if officials “have more time to dedicate to clients who are lower risk.”

Justice Corbin also asked Babione, “What evidence have you presented in this case that indicates that homosexual or gay parents present potential harm to a child?” When Babione referred him to the citations in the defense brief, Corbin questioned whether they were opinion or fact. Babione said they were opinions based upon social science research.

Christine Sun, lead counsel for the ACLU on the case (but who did not argue it on March 17), said she expects a ruling before the court adjourns at the end of June. She said that, depending upon the outcome and how the ruling is written, asking the U.S. Supreme Court to hear the case is “definitely an option.”

In 2005, the U.S. Supreme Court declined to hear a case, Lofton v. Secretary of the Department of Children and Family Services, in which the federal 11th Circuit Court of Appeal said a Florida ban on adoption by gay men and lesbians violated no federal constitutional rights. Babione quoted the Circuit Court in Lofton near the beginning of his argument in Cole, saying, “The state stands in the shoes of the parents that children have lost.”

On March 18, Senator Kirsten Gillibrand (D-N.Y.) and Rep. Pete Stark (D-Calif.) told the Washington Blade they would be introducing bills to ban states from discriminating against LGBT people in foster placements or adoption. A similar bill, the Every Child Deserves a Family Act, was introduced by Stark last session, but died in committee.