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All Families Created Equal

The California Supreme Court's three rulings this week that strengthened the rights and responsibilities of same-sex parents who raise children was a trifecta for lesbian-gay-bisexual-transgender legal advocates. For years, LGBT-rights groups have been seeking clarifications from the California courts on the responsibilities of gay and lesbian parents. Over time, issues like second-parent adoption and the legitimacy of municipal same-sex registries, and then the state’s domestic-partnership registry, were addressed.But one area remained unclear — what about same-sex couples who had their own biological children, but didn’t bother to register as domestic partners or had children before the registries were established? Those kinds of couples were the focus of the first-in-the-nation decisions in Elisa B. v. Superior Court, Kristine H. v. Lisa R. and K.M. v. E.G., which all concerned a lesbian couple who decided to have children together and later split.The court’s statement in the Elisa B. case, which concluded that a former partner had to provide child support to her ex, didn’t mince words on what it thought of same-sex couples who agreed to have kids.“A person who actively participates in bringing children into the world,” the court wrote, “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.”For Clare Pastore, senior counsel for the ACLU of Southern California, which wrote the same amicus brief for all three cases, the rulings were a natural progression of family statutes that required the same responsibilities for straight couples that had kids but never legalized their relationship.“This equalizes the situation,” Pastore says. “We had all the building blocks. But it is groundbreaking in terms of effect.”As opposed to being an example of judicial activism, Pastore says, the speed of technological changes that allow people to become parents has courts in catch-up mode.“People are going to become parents in unorthodox ways,” she says, noting that family law pertaining to artificial insemination and egg donors came after both procedures became available. “The law is always running behind. The question is, what are the principles we have and how do we fit them into this situation?”Forces hostile to the gay-rights movement were predictably dismayed. “By saying that children can have two moms, the court has undermined the family,” Mathew D. Staver, president of the conservative group Liberty Counsel, wrote in a press release. “This ruling establishes a policy that essentially says moms and dads are mere surplus.” Staver went on to say rulings like this were exactly why California voters should vote for a constitutional amendment to ban same-sex marriage, a vote that may happen as early as next summer.That argument is a stretch, says Christine Sun, staff attorney of the ACLU of Southern California’s lesbian and gay rights project.“The court did recognize that same-sex couples can form loving and committed families,” she says. “Whether or not courts will go further and say same-sex couples deserve marriage rights, I don’t think you can say from this opinion.”Kate Kendell, the executive director of the National Center for Lesbian Rights (and the firm that represented the winning side in Elisa B.), says the decisions were about protecting kids.“The core issue really is simple,” Kendell explains. “Will children raised in same-sex-headed households be entitled to the same protections regarding their relationships with both parents that children in unmarried heterosexual households have been afforded? The California Supreme Court made clear that, at least in California, the answer is yes.”Kendell is hoping the answer is yes in other states as well. Next week she is arguing a case in Utah that addresses the rights of a lesbian co-parent who has been denied any visitation of her 3-year-old daughter by her ex-partner, the child’s biological mother. Recently a visitation ruling strongly favoring a lesbian mom came out of Pennsylvania, and in Maryland a court ruled that a gay father could challenge a stipulation of his visitation agreement that said his partner could not live with him and his son.Rulings that strengthen protections for children of same-sex parents are important because there are so many kids out there with queer moms and dads, Brian Moulton, staff counsel for the LGBT advocacy group Human Rights Campaign, says.Multon points to the American Academy of Pediatrics, which estimates there are between 1 million and 9 million children being raised by same-sex couples in the country, belying the frivolous Will & Grace lifestyle assigned to all gays and lesbians by the likes of Staver, who have often argued that same-sex families are rare.“Even taking the most conservative part of that range,” Multon explains, “a million children is not a few smatterings of cases here and there.”Despite the focus on children and families, Kendell concedes that the cases could be an indirect step on the road to legalized gay nuptials in California.“This normalizing is very important,” she says. “If you don’t think it is an unusual thing to have gay and lesbian households be legally recognizable, you’re not going to have a lot of heartburn around gay and lesbian people marrying.”

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