- The Washington Times - Thursday, March 17, 2011

Children in foster care deserve the best parents possible and thus the state can pick and choose what type of families they should be raised in, attorneys told the Arkansas Supreme Court on Thursday.

That is why the court should uphold Act 1, a 2008 voter-passed law that excludes cohabiting heterosexual and homosexual couples from being foster or adoptive parents, said Byron J. Babione, an attorney with the Alliance Defense Fund.

Cohabitation is associated with risks and instability for children, and even biological parents in Arkansas who split up cannot have custody of their children if they are cohabiting with someone, said Mr. Babione, who represented Family Council Action Committee, a major backer of Act 1.

But plaintiffs’ attorney Garrard Beeney maintained before the justices that Act 1 “harms children” by blocking the state from considering many worthy, potential parents.

The state should be free to make “the best match” for a child, rather than being forced to presume that cohabiting couples pose risks to children, said Mr. Beeney, who practices at Sullivan & Cromwell.

He further argued that Act 1 illegally impinges on people’s right to engage in intimate behavior in their own homes, and illegally penalizes same-sex couples, who cannot legally marry in Arkansas.

There is no right to be a foster or adoptive parents, and Act 1 “is a policy decision by the people” about how the state should find new parents for vulnerable children in its care, argued Colin Jorgensen, who spoke on behalf of defendant Arkansas Department of Human Services.

The state high court, led by Chief Justice Jim Hannah, will decide the constitutionality of Act 1, which passed in 2008 by a margin of 57 percent to 43 percent.

Last year, a circuit court judge agreed with the American Civil Liberties Union, which brought the lawsuit titled Cole v. Arkansas Department of Human Services, and struck down Act 1 as unconstitutional. Thursday’s hearing was the state’s appeal of that ruling.

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