Cover Story

Judicial preview

COVER STORY: Rulings that don't make big headlines are quietly setting precedents that could erode the legal foundation for the family

Issue: "Remaking the family," March 6, 2004

In Florida, Linda Forsythe, who has a son from a previous relationship, marries Michael Kantaras, a female-to-male transsexual who had undergone some sex-change surgery but is still anatomically a woman. Although Michael's birth certificate also says she is female, she presents herself to a Seminole County clerk as male in order to obtain a license to marry Linda. During the marriage, Linda has a baby girl through artificial insemination. When the relationship breaks up, Judge Gerald O'Brien awards custody of both children to Michael, even though Florida law recognizes neither same-sex marriage, nor same-sex adoption.

In Colorado, Cheryl Clark, a physician living with her lesbian lover Elsey McLeod, legally adopts a baby girl from China. When the relationship breaks up, Dr. Clark offers Ms. McLeod a generous visitation schedule with the girl, who was then 8. Not satisfied, Ms. McLeod seeks more in court. In April 2003, Judge John Coughlin awards her equal parenting time and near-equal decision-making authority over Dr. Clark's daughter, even though Ms. McLeod has no legal or biological relationship to the girl.

The Clark and Kantaras decisions, both appealed in November 2003, are early mile-markers along a new legal byway that may well remake the American family: pro-homosexual family law. Increasingly, activist judges are forging pro-gay case law, often in the teeth of contrary statutory law. The result: a quiet but steady erosion of the biblically derived legal foundation for the traditional family.

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Among some homosexual activist groups, the issue of legal equality for gay and lesbian "families" has surpassed previous social and cultural hot buttons such as AIDS/HIV and employment discrimination.

Lambda Legal Fund and other liberal groups such as the American Civil Liberties Union (ACLU) have already won lawsuits where homosexual litigants warred over marriage, child custody, parental rights, adoption, and the meaning of gender. Both groups filed friend-of-the-court briefs in Goodrich vs. Massachusetts Department of Public Health, the groundbreaking November 2003 decision that paved the way for state-sanctioned gay marriage.

But for every high-profile case like Goodrich, judges hand down multiple pro-gay decisions that slip under the radar, creating for future family-law combatants an ever-growing reservoir of pro-homosexual legal precedent.

Precedent-decisions in prior cases involving similar issues-often drives judicial decision making, said Liberty Counsel president Mat Staver, who in February will argue on appeal for Linda Kantaras. "Judges who are not inclined to lean one way or the other [ideologically] can be influenced by other court decisions, even if those decisions are wrong."

Meanwhile, activist judges use precedent to get around the plain language of the law, Mr. Staver said. The North Dakota case Damron vs. Damron is a good example. In November 2003, the North Dakota Supreme Court ruled in favor of a lesbian mother, and in the process reversed its own ruling on the same issue more than 20 years ago.

When Valerie Damron divorced her husband Shawn in 2001, the couple agreed that she would have primary custody of their two children, while he would have generous visitation rights. But after Ms. Damron began a live-in lesbian affair, Mr. Damron sued for a custody change. His argument hinged on Jacobson vs. Jacobson, a 1981 state supreme court case in which justices denied custody to a homosexual parent to protect the children from "the slings and arrows of a disapproving society." In January 2003, a trial court, citing the Jacobson precedent, ruled in favor of Mr. Damron.

The trial court acknowledged the current void in good science on the long-term effects of homosexual parenting: "We will not know the answer to either of these questions until the children are older, at which time it will be too late.... It is not the function of the court to use these children as the tool of enlightenment to convince society of the error of its beliefs."

The children went to live with their father. But Ms. Damron, represented by private and ACLU attorneys, appealed to the North Dakota Supreme Court. In November 2003, the justices reversed Jacobson, citing 10 subsequent cases in other states in which courts ruled that a parent's homosexuality, without evidence of other harm, is not in itself a reason to deny custody. The court removed custody from a fit, heterosexual father and sent the children back to the home of Ms. Damron and her lesbian partner.

The Damron decision leaves only four states-Alabama, Mississippi, North Carolina, and Virginia-in which courts may deny a homosexual parent custody based on sexual behavior alone.

Similar precedent is also building around gay adoption. Legislatures in only six states have allowed "second-parent adoptions," a legal procedure that provides to gay and lesbian couples the equivalent of heterosexual stepparent adoptions. But courts in 20 states have awarded second-parent adoptions, according to the gay activist group Human Rights Campaign.

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