Posted on 02/18/2003 8:30:41 AM PST by new cruelty
Donna Colley and Margaux Towne-Colley, a lesbian couple bringing up a son in Omaha, face an ongoing dilemma.
They could stay in Nebraska, where Colley has a satisfying job as a lawyer, the couple own a home and are close to their neighbors. It's also where state law does not allow both women to be legal parents to Grayson, a blond, blue-eyed toddler who was delivered by Towne-Colley after she was artificially inseminated with sperm from an anonymous donor.
That leaves the couple with another option: Leave Nebraska and build a new life in one of about a dozen states that recognize same-sex couples as parents.
Such legal status isn't just symbolic. Because Colley can't be a legal parent to 16-month-old Grayson under Nebraska law, the child would not be entitled to government benefits if Colley were to become disabled or die. The boy would not be guaranteed support payments from Colley if the two women were to split up. And if Towne-Colley were to die, Colley wouldn't automatically receive custody of the boy.
Legal analysts say the choice they face is typical of the forces that are transforming family law across America. Gay and lesbian couples increasingly are going to court seeking to adopt children, acquire rights as parents, take on shared last names and secure a range of benefits similar to those enjoyed by heterosexual couples.
Nearly three years after Vermont approved civil unions for homosexual couples, the evolving acceptance of such couples nationwide is reflected in recent court decisions in which judges have looked not only at biology when determining who is a ''parent,'' but at the roles people play in households. Many judges are saying sexual orientation shouldn't matter in deciding what makes a family. A few conservative groups are fighting the tide, without much success.
Recent cases in Pennsylvania and Delaware symbolize the new age in family law, and judges' increasing flexibility in defining parental roles. Courts in those states ordered lesbians to pay child support for children they had been rearing with their partners before the couples split up.
''People are recognizing that these non-traditional families are here to stay, and courts are finding ways to support the children,'' says Susan Becker, professor at the Cleveland-Marshall College of Law at Cleveland State University.
But as Colley and Towne-Colley's situation suggests, the rules aren't the same for everyone.
State laws -- and local attitudes -- vary widely when it comes to adoption, child support, domestic partnerships and other issues that affect same-sex couples. Courts, laws and government policies in conservative states in America's heartland and in the South generally are less tolerant of efforts to give gay and lesbian couples the same rights as heterosexuals:
* Last year, Nebraska's Supreme Court refused to allow a lesbian to formally adopt the boy whom she and her partner (the birth mother) are rearing. Such ''second parent'' adoptions, which allow a second adult to assume responsibility for a child without the biological parent losing any rights, are legal for gay and lesbian couples in California, Connecticut, Delaware, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, Vermont and the District of Columbia. In a dozen other states, some local courts have backed such arrangements.
* Four states -- Texas, Oklahoma, Kansas and Missouri -- still ban sex between consenting homosexual adults, although the laws are rarely enforced. The U.S. Supreme Court (news - web sites) on March 26 will consider a challenge to Texas' law.
* Eight states and about three dozen cities and counties -- mostly on the East and West coasts -- provide benefits for the partners of their gay and lesbian public employees, gay-rights advocates say.
No group tracks all cases involving gay and lesbian family issues. But those on both sides agree that homosexuals' increasing aggressiveness on family issues has won them gains in courts and beyond.
''In the past, when gay and lesbian couples tried to adopt, they really couldn't identify themselves as gay,'' says Michele Zavos, a Washington, D.C., lawyer who specializes in gay family law. ''Now, they can, either when going through a second-parent adoption or with an agency.''
The rising number of same-sex couples seeking family rights has been a call to action for some conservative groups. And some judges express disdain for same-sex parents. They say that homosexuality is reason enough to keep someone away from a child.
''Homosexual conduct of a parent . . . creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children,'' Alabama Supreme Court Chief Justice Roy Moore wrote last year, when his court agreed with a lower court's decision to limit custody for a lesbian mother.
Overall, however, even some groups that oppose expanded gay rights acknowledge that the trend in state family courts is running against them.
''It's becoming a tougher battle each day,'' says Peter Sprigg, senior director of cultural studies at the Family Research Council, a Washington, D.C., group that wants the law to recognize only marriages between men and women. ''We're probably losing ground.''
Gay-rights advocates say it's all a reflection of the rising profile of gay men and lesbians in politics, the workplace and everyday life. ''People know now that gay and lesbian relationships are not exceptional,'' says Patricia Logue, a lawyer for the Lambda Legal Defense and Education Fund. ''Now, we're seeing what the political winds will bear in each state.''
'I am a stranger to my child'
Same-sex couples and their families have become hot topics for TV shows, movies and media reports in recent years. The increasing openness of same-sex couples, fueled by the successes of the gay-rights movement, has made it seem as though there has been an explosion of such families.
But firm numbers are difficult to come by. The U.S. Census Bureau (news - web sites) did not collect figures on same-sex couples until 2000, so there are no reliable statistics on the growth in such households. The 2000 Census found 1.2 million people living in households with unrelated adults of the same sex, but analysts say that figure is low because it was derived from a part of the Census form that some people ignored.
Similarly, estimates of children of gay or lesbian parents vary widely. Judges have cited various reports that put the number of children living with at least one gay or lesbian parent at 6 million to 12 million.
''The sheer number of support groups, magazines and Web sites for gay and lesbian parents suggests that the number is significant,'' says Denver lawyer Kim Willoughby, who specializes in issues regarding same-sex couples.
Advances in reproductive technology, including artificial insemination, egg donation and in-vitro fertilization, have given gay men and lesbians ways to become parents beyond adoption.
Although it has become easier for same-sex couples to work with private adoption agencies, they sometimes do not disclose their sexual orientation, making reliable statistics about such adoptions difficult. Gay men or lesbians who adopt foreign children typically have one partner adopt as an individual, and the other partner initiate a second-parent adoption later.
After Towne-Colley, 38, got pregnant two years ago, she and Colley, 43, planned to return briefly to Vermont, where they had a civil union ceremony in 2000. (Towne added Colley's name to hers that year.) They wanted Grayson to be born there because the state would allow both women to be listed as parents on his birth certificate. But they were still in Nebraska in October 2001, when Grayson was born nine weeks early.
Working around Nebraska law, the couple drafted wills, a parenting agreement and other papers that spell out their responsibilities for Grayson. ''We are trying to do everything we can to tie ourselves together legally and bind me to our son,'' says Colley, whose salary and benefits provide for the family.
Still, Colley says, ''under the law, I am a stranger to my child.'' For now, she and Towne-Colley are staying in Nebraska and not challenging its parenting laws. They are mindful of last year's state Supreme Court decision against a lesbian couple and say they don't want to risk an adverse ruling.
Amy Miller, a lawyer for the ACLU of Nebraska, represented the lesbian couple whose case went to Nebraska's high court. The court said state law forbids a second adult from adopting a child unless the birth mother (in this case, one of the partners) gives up her rights to the child.
Miller says her unidentified clients wanted to make sure that if the birth mother died, their 3-year-old son, Luke, could receive Social Security (news - web sites) and other benefits tied to her partner. After they lost in court, they moved to Portland, Ore. Thanks to a second-parent adoption there, Miller said, they both are Luke's legal parents.
In Cincinnati, Cheryl, 41, and Jennifer, 36, are rearing a 2-year-old boy who is the product of an egg harvested from Cheryl, fertilized by sperm from an anonymous donor, and implanted in Jennifer.
The couple, who agreed to be interviewed if only their first names were used, say they might seek shared parental rights. But they know that Ohio courts often reject such efforts. They say moving out of state is not an option. ''This is just as much our state as anyone else's,'' Cheryl says.
Focusing on 'functional' parents
Ohio has been a battleground for the new generation of family law cases. The state Supreme Court has handed victories to those on both sides of the issue.
During the past year, the court endorsed shared last names for gay and lesbian couples but rejected second-parent adoptions for homosexuals. In Cleveland Heights, voters gave health benefits to gay and lesbian partners of city employees. An effort to reverse the move through a referendum failed.
''I think you're going to see a backlash soon,'' says Robert Knight, director of the Culture and Family Institute at Concerned Women for America, a Washington, D.C., group that opposes rights for same-sex couples. ''Their movement is displacing marriage as the gold standard in family law.''
But Duke University law dean Katharine Bartlett says judges have struggled with nontraditional families since divorce rates jumped three decades ago. ''Courts aren't trying to contribute to the demise of traditional families. But they recognize the reality of families today and 'functional' parents.''
That was evident in a Pennsylvania case in December. The state Superior Court affirmed a trial judge's order that a lesbian should pay support for five children she had been bringing up with her ex-partner. That case followed one in Delaware in which a judge ordered a woman to pay support for a son that her former partner had through in-vitro fertilization.
But providing for children isn't always the overriding factor in such cases. Last year in Idaho, a local magistrate denied a gay man, Theron McGriff, custody of his two children from a marriage to a woman. The magistrate said McGriff, 38, couldn't visit them if he continued to live with another man. Idaho's Supreme Court agreed to hear McGriff's appeal.
''Sexual orientation should be irrelevant,'' says Shannon Minter, McGriff's attorney. ''Unless you're living under a rock, you know the way people live has changed.''
Precisely. Note that Jefferson used the term "Nature's God," a rather generic term. It did not say God, or Christ, or Yahweh, or Buddha.... "Nature's God" was intentionally used by Jefferson so as to counter the exact argument you are making. Natural Rights have no moral clause attached to them.
Putting foster children already wounded by psychological or physical trauma in homosexual households gives them yet another emotional challenge to overcome.
WHO TO CONTACT: (1) Thank Florida Gov. Jeb Bush for defending his state's ban on homosexual adoptions and acknowledging that married households are healthiest for kids. Write the Office of the Governor, The Capitol, Tallahassee, FL 32399-0001 or call 850-488-4441 or e-mail fl_governor@eog.state.fl.us (2)
BURGER, C.J., Concurring Opinion Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. Homosexual sodomy was a capital crime under Roman law…. During the English Reformation, when powers of the ecclesiastical courts were transferred to the King's Courts, the first English statute criminalizing sodomy was passed…. Blackstone described "the infamous crime against nature" as an offense of "deeper malignity" than rape, a heinous act "the very mention of which is a disgrace to human nature," and "a crime not fit to be named." W. Blackstone, Commentaries . The common law of England, including its prohibition of sodomy, became the received law of Georgia and the other Colonies. In 1816, the Georgia Legislature passed the statute at issue here, and that statute has been continuously in force in one form or another since that time. To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.
This is essentially not a question of personal "preferences," but rather of the legislative authority of the State. I find nothing in the Constitution depriving a State of the power to enact the statute challenged here.
Thomas Jefferson on Sodomy Sect. XIV. Whosoever shall be guilty of rape, polygamy, or sodomy* with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least. Peterson, Merrill D. "Crimes and Punishments" Thomas Jefferson: Writings Public Papers (Literary Classics of the United States, Inc. 1984) pp. 355, 356.
1. In the United States, the civil rights which we all enjoy are rooted in the laws of nature and of nature's God, in the unalienable rights to life, liberty, property and the pursuit of happiness. [I have been in contact with all 187 legislators on this matter, at least five to eight times. I've heard back from 48 of them, and none of them will dispute the statement I just gave to you.]
2. The only source for unalienable rights in all human history is the Creator, the God of the Bible. [I've had a couple of people try to dispute me on this. And some years ago one was Nadine Strossen, who is president of the ACLU. And I said that the only source is the God of the Bible, and she started off that evening, and the topic was homosexuality and civil rights that evening. And she quoted the language from Jefferson, that we hold these truths to be self-evident, that all men are created equal, endowed by their Creator with certain unalienable rights, among which are life, liberty and the pursuit of happiness. And as she quoted that, I said you started at the same source that I started: unalienable rights. And so I just have one simple question. Who is the Creator that Thomas Jefferson was referring to? And Jefferson was a rationalist. He was not by any stretch an evangelical Christian as myself, and yet he and those with him who were from an orthodox Christian background in a Protestant context, appealed to a source higher than King George III. They appealed to the Creator. So I asked Nadine Strossen, who is the Creator? She looked at me and said well, you have your Creator and other people have their Creators. I said no, you've just described polytheism. In other words, that's not the context to which Jefferson was referring to. And if you look at every polytheistic culture in all of human history, they have no concept of unalienable rights. Rights go to those who are in power, whereas the concept of unalienable rights upon which this nation is founded, are rooted in the biblical understanding of the Creator, that says that all people deserve the same rights because they are people, and not because of any other secondary reason.]
3. The God of the Bible defines true marriage as one man, one woman, one lifetime. [This is the order of creation, the image of God.] The health of society is rooted in this foundation.
4. In human history, no society has ever affirmed both homosexuality and unalienable rights. [So here is an intellectual challenge, to track out history, to find out where unalienable rights are affirmed. And if you can find any society that ever has affirmed homosexuality and unalienable rights together, you won't find it.]
The Constitution also does not confer a fundamental right to barbecue on Sundays....
Thomas Jefferson on Sodomy Sect. XIV. Whosoever shall be guilty of rape, polygamy, or sodomy* with a man or woman, shall be punished; if a man, by castration, a woman, by boring through the cartilage of her nose a hole of one half inch in diameter at the least. Peterson, Merrill D. "Crimes and Punishments" Thomas Jefferson: Writings Public Papers (Literary Classics of the United States, Inc. 1984) pp. 355, 356.
It's a new world... I don't approve of homosexual sex, it's not my cup of tea. But people have the right to engage in that activity if they want. As far as homosexual adoption, I disapprove until there is evidence that it does not harm the upbringing of a child.
Where is the fundamental conservative principle of less government and more freedom?!
Good grief, we were given free will. Some of you are so off the wall its amazing.
Good grief? Freedom is the ability to choose the good. The exercise of Free Will in the comission of sin is called License. It is an abuse of our Free Will in the intent God gave it to us, which was to freely choose to love Him by doing His will.
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