Partners as parents: challenges faced by gays denied marriage.

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

--Supreme Court Justice William Brennan, Eisenstadt v. Baird, 1972.

I had just read these words in my constitutional law class in 1997 when a coworker of mine shared with me his and his partner's struggles to have a child. They, together with a lesbian couple with whom they were close, had made numerous attempts at pregnancy "the old-fashioned way"--by tracking ovulation and inserting the sperm with a turkey baster--to no avail. They had recently begun to explore artificial insemination and were again frustrated to realize they would have to travel quite far from their Virginia home to get to a state where the procedure was legally available to them. A Virginia statute restricts the procedure to couples who are husband and wife. Numerous other states have similarly restrictive statutes. It seems that these laws aren't constitutional in light of the Supreme Court's 1972 decision in Eisenstadt v. Baird. Although the Eisenstadt ruling dealt specifically with laws restricting the use of contraceptives to married couples, the language of the decision was broad enough to encompass efforts to have a child as well as to avoid having a child.

In the past several years, issues regarding gay marriage and gay families have become a regular part of the national debate and, to a lesser extent, political debate. In 1996 Congress passed the Defense of Marriage Act (DOMA) in response to a Hawaii law that granted same-sex couples the right to marry (the law was later overturned by the Hawaii state legislature). Since then, thirty-seven states have passed their own DOMAs.

At the same time, it has become progressively easier for gay families to gain custody of biological children, conceive biological children through various fertilization methods and services, and adopt children. Yet President George W. Bush, many religious conservatives, and even some Democratic presidential hopefuls have reaffirmed their belief that marriage by definition applies only to unions between one man and one woman.

Given all the national rhetoric about the sanctity of marriage and the importance of raising children within a legally recognized relationship, one would assume that legislators would take note of the growing numbers of young children being raised by gay parents and get to work passing legislation legitimizing their parents' relationship. Yet nothing could be further from the truth. Despite Canada's recent move toward legalizing same-sex marriages, the United States continues to show every intention of fighting tooth and nail against this broadening of marriage laws, including a recently proposed constitutional amendment barring same-sex marriage. Unfortunately, the opposite mood has prevailed.

Data from the 2000 U.S. census reveal that approximately one in three lesbian/bisexual couples and 22 percent of gay/bisexual couples are raising children. According to the National Gay and Lesbian Task Force (NGLTF), estimates of the total number of children with at least one gay or lesbian parent range from six million to fourteen million. Yet these numbers only track gays who were willing to self-report on the census; many remain unwilling to reveal their sexual orientation to the federal government, as the government offers them no protection from discrimination. Thus, the numbers certainly underestimate the true number of gays raising children. Married heterosexual couples with children comprise only 23 percent of U.S. households.

Gay or straight, not all parents raise children equally. Parenting ability relies on a complex and unquantifiable mix of skills and emotions. Love, patience, empathy, and respect, along with the ability to provide necessities and discipline without being abusive, are a mere sampling of points along the infinite parenting spectrum. It is curious--and telling--that current debate focuses on the legal ability of gays to marry rather than their actual ability to maintain life partnerships and to raise productive, well-adjusted children.

Even so, gay parents face unique barriers in their efforts to care and provide for their children. According to the NGLTF, privileges enjoyed by heterosexual married couples but denied to gay parents include: legal recognition of the parent-child relationship for children born during the relationship; recognition of parental status under the Family and Medical Leave Act; access to child support when the parental relationship ends; the right to petition for visitation and custody after the dissolution of a relationship; and On some states) adoption and foster parenting.

paths to parenthood Same-sex couples become parents in a variety of ways. Some have children from previous heterosexual relationships while others are adoptive or foster parents. Lesbians may become pregnant through donor insemination and gay male couples are turning more and more to surrogacy arrangements.

According to the NGLTF, donor insemination use among lesbian couples has increased since the 1980s. While insemination seems like an ideal solution, practical and legal barriers make it less so. Insemination is very expensive and results aren't always guaranteed. Insurance rarely covers these services--at least where lesbians are concerned--and clinical infertility hasn't been demonstrated. In addition, the majority of states have yet to address the issue of whether the sperm donor is the legal father of the child. This leaves the child's legal parentage to chance, opening the door for future legal problems. Also, the inability to prove paternity can be a stumbling block later on if one or both of the partners needs to be availed of public benefits.

Likewise, the NGLTF reports that the use of surrogacy among gay men has been on the rise in recent years. Unlike donor insemination, a generally accepted practice across the social and professional landscape, surrogacy is often considered controversial. Many states discourage the practice and two prohibit it outright. Other states prohibit payment to the surrogate mother. As with insemination, the law is unclear as to who are considered the legal parents of the offspring. Some states recognize the surrogate and her spouse while others attribute parentage to the couple contracting with the surrogate.

adoption Only Florida specifically prohibits individual lesbians and gay men or same-sex couples from adopting children. Mississippi only prohibits same-sex couples from adopting and some states, such as Utah, prioritize heterosexual married couples as adoptive and foster parents. Other states that don't make it a specific consideration in adoption determinations often take sexual orientation into account if raised in the course of the proceeding. Even so, many states allow gays to adopt as individuals and many--including California, Connecticut, the District of Columbia, Massachusetts, New Jersey, New York, and Vermont--now allow joint adoptions by same-sex couples.

What is truly harmful for children of gay parents is the lack of legal protection arising out of a failure to recognize same-sex marriage or to allow adoption by nonbiological life partners. The situation of nonbiological same-sex partners is most similar to that of stepparents in heterosexual marriages. Generally, if the noncustodial biological parent consents, stepparents may adopt the children. Yet, in the same situation, same-sex life partners usually require rigorous home visits and family studies. Most states have recognized that in some limited circumstances stepparents can adopt even without the noncustodial biological parent's consent, yet this doesn't hold for same-sex life partners.

The child suffers needlessly when the nonbiological partner is unable to establish a legal relationship, especially should the biological parent die or the relationship otherwise dissolve. The child isn't entitled to financial support or inheritance rights if there is no will. Lack of legal protections for the nonbiological partner include custody and visitation privileges, consent to emergency medical treatment, and permission to attend parentteacher conferences.

Children with an adoptive stepparent enjoy other benefits not available to children living with a same-sex parent who is unable to adopt. Some state worker's compensation programs and the federal Social Security survivor benefit program now permit minor stepchildren living with and dependent upon a stepparent to receive benefits after the stepparent's death. Additionally, the Family and Medical Leave Act allows unpaid leave to care for a stepchild. Extending these benefits and protections to same-sex couples by legitimizing their relationships would ensure that the children of these couples will be treated equally with children of heterosexual married couples. The benefits of according these protections to all children easily outweigh the externalities imposed on third parties disapproving of homosexual relationships.

The landscape is somewhat different in cases of second-parent adoption, where one member of a samesex couple is a biological parent and the nonbiological partner wishes also to become a legal parent. Stepparents in heterosexual marriages encounter little or no barriers when it comes to adopting the child of the biological parent. The law assumes that such an arrangement is in the child's best interests. Approximately twenty-five states allow same-sex second-parent adoptions but the adoptions are costly and littered with invasive and time-consuming procedures. Unlike heterosexual couples in the same situation, same-sex couples are subjected to numerous home visits and intensive social work assessments to determine the suitability of the adoption.

Because heterosexual couples are often the preferred placements for adoptive children, many gay and lesbian couples willingly adopt the least "adoptable" children. Most married couples seek to adopt healthy babies. As a result, children with physical or mental disabilities often spend their lives being shuffled around between countless foster homes. By the time they are of school age, finding adoptive parents for them becomes next to impossible. According to Allison Beers' 1997 article "Gay Men and Lesbians, Building Loving Families," published by the Adoption Resource Exchange for Single Parents, many of these children are now placed in stable, loving homes with gay individuals or gay couples. Beers cites the example of Elmy Martinez, who adopted five special-needs children. At the time the article was written four out of the five children had graduated from high school, two went on to the army, one received vocational training and was holding a steady job, and one had completed two years of community college. As proud as any parent, Martinez states in the article, "These kids have made a big difference in my life. You take them away from me and what am I?"

That gays are more readily allowed to adopt specialneeds children raises an interesting question: why are the people who some label as "unfit to parent" often given children needing the most care? Where are the protests from heterosexual couples and conservative groups that proclaim homosexual relationships to be both immoral and illegal? Why aren't they rushing in to rescue these children from adoption by parents who suffer from what the Family Research Council has called a "pathological condition?"

custody As challenging as it might sometimes be for same-sex couples to create a family, keeping the family together can be equally challenging. For gay and lesbian parents, custody disputes, by nature emotionally charged and often contentious, pose additional threats not faced by their heterosexual counterparts. Although the laws governing custody vary from state to state, two universal principles govern: that the court should consider the "best interests" of the child when determining custody and that there is a strong preference for placing the child with a natural parent as opposed to a third party. Courts considering custody disputes between two natural parents have generally followed one of three approaches for determining the fitness of gay and lesbian parents: the nexus approach, the nexus approach as a minor factor, and the per se approach.

The nexus approach is used by the majority of states. It asks the court to consider the causal connection between the conduct of the parent and any adverse effect on the child. The court inquires into the abilities of the parent rather than deeming the parent per se unfit based on sexual orientation. Of the three approaches, the nexus test is the most fact based, focusing on actual evidence of the child's best interests as opposed to stereotypes or presumptions about the parent. The parent's sexual orientation is only considered if harmful effects are proven. Currently, the District of Columbia is the only jurisdiction in which sexual orientation in and of itself cannot be a conclusive factor in custody and visitation matters.

Similarly, the nexus as a minor factor approach has led some courts to maintain that the parent's sexual orientation is merely one of many considerations in determining the best interests of the child. It differs from the strict nexus approach in that courts using nexus as a minor factor will automatically consider the parent's homosexuality in determining the best interests of the child.

The per se approach holds that the parent's homosexuality presents a refutable presumption that the parent is unfit. It rests on the notion that children of homosexual parents cannot possibly thrive because of social stigma, peer harassment, and the threat to their own "normal" heterosexual development. For the most part, even very conservative courts have shifted away from this approach in recent years. The per se rule isn't without support, however. Noted family law scholar Lynn Wardle of Brigham Young University would apply a refutable presumption to all cases involving a homosexual parent. Wardle would allow the heterosexual exspouse who has been denied custody to use a gay parent's new relationship as grounds for modifying the custody agreement and thus grant custody to the formerly noncustodial ex-spouse.

Unfortunately, the per se rule ultimately harms the child it seeks to protect by fueling power struggles between parents and undermining

the state's (and the child's) interest in the finality and continuity of the custody agreement. The per se approach effectively eradicates the requirement for the party seeking to gain custody to show a change in circumstances that would serve the child's best interests.

In addition, courts often impose restrictions on divorcing parents that typically deny economic support (and sometimes custody) to parents who are cohabiting with a partner to whom they aren't married. These restrictions unfairly burden gay parents because they aren't legally able to marry their partners like heterosexual parents can, forcing them to choose between their children and their partner.

For the most part, gay parents today have a much easier time gaining custody of their children than they have in the recent past. Cases denying gay parents custody on factors other than actual fitness stand out as an area that generally receives little attention. Two cases are worth noting.

In the 1996 Ward v. Ward decision, the First District Court of Appeals for the district of Florida awarded the father's petition for a change in custody based on the mother being a lesbian, despite the fact that the father had been convicted of murdering his first wife. What's more, the father had been less than a model parent in following the original custody agreement: he declined the mother's offer to extend his summer visitation, didn't attend doctors' appointments or parent-teacher conferences, wasn't knowledgeable about the child's attention deficit disorder, and fulfilled his child support obligation only sporadically.

In Bottoms v. Bottoms, a Virginia court in 1994 denied the mother custody in favor of the maternal grandmother, finding that a lesbian was per se unfit to parent. Ignoring expert testimony concluding that the child wasn't adversely affected by his mother's relationship with her partner, the judge based his ruling on his personal belief that the mother's conduct was illegal and immoral. At the time the case was tried, a Virginia sodomy statute made oral and anal sex a felony offense. But the statute applied to heterosexuals as well as homosexuals, and while the judge thoroughly probed the nature of the mother's relationship with her lesbian partner in graphic detail, he never questioned the grandmother's sexual practices.

In the Bottoms case, both the mother and the grandmother were high school dropouts with no special skills or training. Sharon Bottoms, the child's mother, had been sexually molested by her mother's boyfriend from the age of twelve to seventeen. Up until two weeks before the custody proceedings began, the grandmother continued living with the boyfriend who she knew had molested her daughter. Despite this, she was granted custody of the grandchild because the judge felt that she was a better parent than any homosexual could ever be. The grandmother's history of cohabiting with a man known to be molesting her own child should clearly have reinforced the presumption for the natural parent. Instead, the judge allowed prejudice to subjugate the law and stripped Sharon Bottoms of her parental rights.

Despite legal advancements since the Bottoms case, lesbian mothers continue to face unique custody challenges. According to the NGLTF, approximately 30 percent of all lesbian and bisexual female parents have been threatened with a loss of custody. Among those seeking to obtain custody from lesbian mothers are biological fathers, sperm donors, female co-parents, grandparents, and other relatives.

In addition, many gay individuals and families live in poverty. Yet gay families who rely on public benefits often find themselves up against a welfare system that favors married heterosexual couples above all other families. According to the NGLTF, gay couples face challenges in all areas of public benefits--from housing assistance, where they are often unable to register as a family, to Temporary Assistance to Needy Families regulations that assume all children are the products of heterosexual unions. For example, lesbian mothers unable to establish paternity of their children risk losing a large percentage of benefits and may forfeit benefits altogether. Single fathers on the other hand aren't required to disclose the maternity of their children in order to receive benefits.

children of gay parents In her 1997 Family Advocate article "Debunking Myths About Lesbian and Gay Parents and Their Children," Kathryn Kendall addresses the gender identity and sexual orientation of children raised by gay parents. Kendall points out that numerous studies conducted since 1978 have found that children raised by gay or lesbian parents are "indistinguishable from other children in terms of gender identity, gender role behavior, and general psychological health" and that the incidence of same-sex orientation among children of gay and lesbian parents is the same as for heterosexual parents. Likewise, Kendall found that in terms of self-esteem, divorce does more damage to children than does their parent's sexual orientation.

Another argument frequently made by conservatives is that gay parents will surely raise genderconfused children. However, studies have consistently shown that this isn't the case. Carlos Ball and Janice Farrell Pea surveyed a series of studies from 1978 to 1996 regarding the sexual orientation of children raised by homosexual parents. Their survey concluded that, with the exception of one study, the percentage of children of gays and lesbians who were identified as gay or lesbian ranged from zero to nine.

Perhaps the most widely used argument against allowing gays to marry, adopt, or retain custody of their children is the assumption that being raised by gay parents will cause children to "become" gay. But is this really the case? And if so, is it really harmful? We tend to think of heterosexuality as the norm but the most conservative estimates allow that approximately 3 percent of the population is gay. Although 3 percent seems next to insignificant, a different picture is presented when translated into raw numbers. For example, if there are 1,674,000 self-identified same-sex couples in the United States, then there are at least 3,348,000 gay individuals in the United States. It is a lot harder to overlook three million than 3 percent. So, besides marginalizing the incidence of homosexuality, the fear that children will turn out to be gay assumes that being gay is in and of itself detrimental to the child.

the myth of homosexuality and podophilia It is a common misperception that gays are more likely to molest children than heterosexuals. In fact the vast majority of child molestation acts are perpetrated by heterosexual men. In her 1994Pedialrics magazine article "Are Children at Risk for Sexual Abuse by Homosexuals?" Carole Jenny found that 94 percent of molested girls and 86 percent of molested boys were abused by men. Of the boys abused by an adult male, 74 percent were abused by someone in a heterosexual relationship with the child's mother, while only 2 percent of perpetrators could "possibly" be identified as homosexual.

Yet these unambiguous statistics on child molestation aren't at issue when heterosexual men seek physical custody of their children. And yet at least one family law scholar, Lynne Wardle, has argued that potential abuse is a factor to be considered when gays and lesbians seek custody. The disparity between stereotype and reality is indicative of the level of harm that can ensue by allowing prejudice to determine custody placements.

conclusion Issues addressing the rights of homosexuals appear daily in the news. Debates abound about gays' right to marry, raise children, and hold a leadership role in public, private, and religious entities. The fact that these issues have come to the fore and are being publicly discussed says much about current attitudes regarding homosexuals as people. As with previous civil rights struggles, the road to full personhood under the law is long and hard but worth the journey.

Those who continue to oppose the right of homosexuals to marry and otherwise be free from discrimination in employment, housing, inheritance, family matters, and the countless other rights that many heterosexuals take for granted base their objections largely on religious grounds. Hiding behind the facade of morality they call upon "tradition" as their key witness for refusal to change. But tradition is a red herring attempting to disguise what is fundamentally a religious objection based on--as Bush so eloquently put it--the "sanctity of marriage," meaning a one-man/one-woman relationship for the purpose of creating and raising God's children.

But truth will ultimately trump tradition and the truth is that God is an optional party to a marriage in the United States. The real foundation of a marriage is having a legally recognized relationship between two people that affords them numerous benefits and protections, along with a handful of duties. While many couples choose to marry in a religious ceremony and plan to raise a family together, neither of these options is required and a couple is just as married if they have a civil ceremony and never have children. So how relevant is the "sanctity of marriage?" It is relevant only to those who choose to make it so within their own relationship.

Marriage is a wonderful and important societal institution. It signals to the community a dedicated respect, affection, and commitment to one's partner. It fosters a recognizable and familiar family structure that makes it possible to confer and enforce the legal benefits, protections, and responsibilities that go along with it. It provides stability and safety for one's partner and children in the event of tragedy or dissolution of the relationship. As such, it should be available to all people, regardless of their sexual orientation. Conception, adoption, and custody likewise shouldn't be compromised by an unfounded concern that exposure to homosexuality poses a danger to children. Rather, they should be based on the long-standing principle of the best interests of the child and a presumption in favor of the parents who choose to conceive, adopt, or otherwise raise the child.

As popular as ideas about the instability of gay families may be, they are based on fear and not on fact. Nearly all children are teased about something, whether it be the child's physical appearance, speech, ethnicity, race, religion, or economic status. Society will have its prejudices. In the 1984 case of Palmore v. Sidoti, the Supreme Court overturned a case refusing custody to a child's mother based on fear of harassment arising out of her interracial marriage, stating, "The Constitution cannot control such prejudices but neither can it tolerate them." Likewise, prejudice against gays' right to adopt is unconstitutional and should no longer be tolerated in the United States.

Charlene Gomes is an attorney in Northern Virginia and a passionate women's rights and civil rights advocate. She is past program director of the Women's Law and Public Policy Fellowship Program at the Georgetown University Law Center and currently serves as the public interest coordinator at American University's Washington College of Law.