BISMARCK, N.D. (AP) — North Dakota’s Supreme Court would be rewarding prejudice by agreeing to take away a lesbian couple’s custody of two young girls, which a judge revoked because of the couple’s relationship, an attorney contended.

The appeal gives the justices a chance to revisit a 1981 decision that used homosexuality as the reason for giving custody of two children to their straight father, rather than his former wife and her lesbian partner.

Northwest District Judge Gary Holum relied on the earlier precedent in declaring last spring that the girls’ father, Shawn Damron, should take over custody of the children from their mother, Valerie Damron, and her partner, Ann Elliot.

The appeal has drawn attention from the American Civil Liberties Union Foundation. An ACLU attorney, Tamara Lange, spoke on Valerie Damron’s behalf during Supreme Court arguments on Sept. 4.

Lange said the children, 10-year-old Harley and four-year-old Cheyenne, are thriving in their mother’s home. Shawn Damron agreed to let his former wife have custody of their daughters even though he knew of his wife’s sexual orientation, Lange said.

“The bottom line is that there is no reason in this case to subject Harley and Cheyenne to the disruption and the painful, destabilizing effect of a change of custody,” Lange told the justices.

The high court will issue its decision later.

Shawn and Valerie Damron were married for 10 years before they divorced in September 2001. Shawn Damron challenged the custody decision less than 18 months later.

He has conceded his former wife is a good mother to their daughters, and Damron’s attorney, Tom Slorby, of Minot, said the custody case was brought because of Valerie Damron’s open lesbian relationship.

Shawn Damron feared that his children would be exposed to ridicule in school because of their mother’s living arrangement, Slorby said.

Chief Justice Gerald VandeWalle wrote the Supreme Court’s decision on the 1981 case involving a lesbian couple, Jacobson v. Jacobson. Responding to a question from VandeWalle, Slorby said he does not believe society has become more tolerant of gays and lesbians since then.

“I don’t think we’ve come anywhere at all,” Slorby said. “It’s a sad statement for me to make ... The homophobia is still as great as it always was.”

Justice Mary Muehlen Maring wondered if the same “ridicule” logic would apply in other contexts. Should a custody decision go against her, Maring asked, if she wore a burka, which is a traditional Muslim shawl, and her children were teased as a result?

Lange said the justices could apply the same custody standards for gay couples as they have for cohabiting straight couples and parents with disabilities.

“If a child is being teased because their parent is in a wheelchair, but the parent is fully able to care for the child, that can’t be a justification for a change of custody,” she said. “There may be many other remedies for dealing with the private prejudice.”

Court filings say Valerie Damron and Elliot have purchased a three-bedroom home in Minot, and have a joint checking account. Valerie Damron is a special education teacher in the Minot schools, while Elliot, an Air Force veteran, is a private security officer.

Elliot met Damron’s former husband at the Minot Air Force Base, when both were in the Air Force. Shawn Damron is still stationed there.

Elliot and Shawn Damron worked together and were friends, and Damron introduced Elliot to his wife, court documents say. Elliot eventually took an honorable discharge from the Air Force.

North Dakota law sets out specific factors for determining a child’s best interest in custody decisions, including the parents’ ability to love the child and provide for his or her needs, along with the “mental and physical health” and “moral fitness” of the parents.

Lange argued the factors would weigh in Valerie Damron’s favor if she were heterosexual, and said it would violate the constitutional rights of Elliot, Valerie Damron and her daughters by using sexual orientation as the basis for changing custody.

Valerie Damron “has a right to be open about her sexual orientation, and the children have a right to be open about the family structure,” Lange said.

Slorby disputed Lange’s description of the appeal.

“I don’t see this case having anything to do with constitutional rights, gay rights or anything else,” he said. “This is a child custody case, based on the best interest of the children.”