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Gay rights and children's rights
Published August 25, 2005
Critics of gay rights insist that in opposing same-sex marriage they are trying to protect children. But when the California Supreme Court said this week that lesbian partners have the same responsibilities to their children as other parents, conservatives took a different line: If what's good for the kids is also good for gay rights, it must be bad.
The court ruled in three different cases, and in each of them, as The Los Angeles Times put it, "delivered a ruling that guaranteed that children born to gay couples have two legally recognized parents." Those decisions elicited blistering comments from some conservative groups, which see them as another step down the road to same-sex marriage.
Mathew Staver of Liberty Counsel, a law firm that filed a brief on the losing side, said the court's action was "nonsense" and "has undermined the family." Said Paul Cameron, head of the Family Research Institute, "This is insanity writ large, and judicial arrogance writ large as well."
In fact, this is not an instance of judges going beyond their rightful role to alter time-honored social arrangements. It's a case of judges applying established law to novel problems created by changing mores. Far from being crazy, the court's action was a sober effort to give priority to what should be our central concern: the best interests of the children.
The most significant decision involved Elisa and Emily, two lesbians who began a relationship in 1993. After moving in together, they decided to undergo artificial insemination, which each did with the other present. Elisa bore a son, and Emily gave birth to twins, a boy and a girl.
The couple proceeded to raise all three kids as their own. Each of the women nursed all three babies, and they gave them the same last name (their own last names combined with a hyphen). Neither went to the trouble of legally adopting the other's offspring, and they didn't register as domestic partners when California created a registry in 1999.
They separated that year, and eventually Elisa refused to pay child support for the twins. A lower court ruled that because she was not a natural parent of the children, they were not her responsibility. But the Supreme Court overruled that decision, based on a conclusion guaranteed to infuriate opponents of gay rights: "We perceive no reason why both parents of a child cannot be women."
That view may sound like an affront to nature. But nature is only one factor in the making of families. Suppose a man were to move in with a woman, consent to her artificial insemination, be present at the birth of the resulting baby and raise the child as his own. In that case, would anyone say he has no paternal rights or duties?
Of course not. One critical element of artificial insemination is that the natural father is not treated as the father for any purpose. The father, in such cases, is the man who serves in the social function of father rather than the one who performs the biological function of providing sperm.
The court found that Elisa may not have been the only mother, but she was a mother. It quoted approvingly from a brief submitted by the California State Association of Counties: "A person who actively participates in bringing children into the world, takes the children into her home and holds them out as her own, and receives and enjoys the benefits of parenthood, should be responsible for the support of those children--regardless of her gender or sexual orientation."
Groups rejecting gay rights argue that kids do best in stable homes with married heterosexual parents. But even if that is true, it's no excuse for shortchanging children in homes headed by cohabiting homosexual partners. It's not illegal for lesbians to set up housekeeping, bear children and raise children in their own version of a family any more than it is illegal for straight couples to do so.
Given that some homosexual couples are going to serve as parents, legislatures have a duty to write laws that cover such modern conventions. And courts are obligated to apply existing laws, which may not have foreseen all contingencies, to protect vulnerable youngsters from falling through the cracks. That's all the California Supreme Court did here.
Some conservatives accuse the justices of defying logic, to the detriment of children, for the sake of an ideological mission. Well, look who's talking.
Steve Chapman is a member of the Tribune's editorial board. E-mail: email@example.com
Seattle Post-Intelligencer Editorial: Family Law: The best interest