No connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated. -Supreme Court, Bowers v. Hardwick, 1986 Sharon Kowalski is the child of a divorce between her consanguineous family and her family of affinity, the petitioner Karen Thompson
.... That Sharon's family of affinity has not enjoyed societal recognition in the past is unfortunate.
Minnesota State District Court
In re: Guardianship of Sharon Kowalski, Ward, 1991
In the effort to end second-class citizenship for lesbian and gay Americans, no obstacle has proved tougher to surmount than the cluster of issues surrounding "the family." For the past twenty years, the concept of family has functioned as a giant cultural screen. Projected onto it, contests over race, gender, sexuality and a range of other "domestic" issues from crime to taxes constantly create and recreate a newly identified zone of social combat, the politics of the family. Activists of all persuasions eagerly seek to enter the discursive field, ever-ready to debate and discuss: Who counts as a family? Which "family values" are the authentic ones? Is there a place in the family for queers? As battles are won and lost in this cultural war, progressives and conservatives agree on at least one thing-the family is highly politicized terrain.
For lesbians and gays, these debates have dramatic real-life consequences, probably more so than with any other legal issue. Relationship questions touch almost every person's life at some point, in a way that military issues, for example, do not. Further, the unequal treatment is blatant, de jure and universal, as compared with the employment arena, where discrimination may be more subtle and variable. No state allows a lesbian or gay couple to marry. No state recognizes (although sixteen counties and cities do) domestic partnership systems under which unmarried couples (gay or straight) can become eligible for certain benefits usually available only to spouses. The fundamental inequity is that, barring mental incompetence or consanguinity, virtually any straight couple has the option to marry and thus establish a next-of-kin relationship that the state will enforce. No lesbian or gay couple can. Under the law, two women or two men are forever strangers, regardless of their relationship.
One result is that every lesbian or gay man's nightmare is to be cut off from one's primary other, physically incapacitated, stranded, unable to make contact, without legal recourse. It is a nightmare that could not happen to a married couple. But it did happen to two Minnesota women, Sharon Kowalski and Karen Thompson, in a remarkable case that has been threading its way through the courts for six years.
Sharon Kowalski, notwithstanding the Minnesota State District Court's characterization of her as a "child of divorce:' is an adult with both a committed life partner and parents who bitterly refuse to acknowledge either her lesbianism or her lover. Kowalski is a former physical education teacher and amateur athlete, whose Minnesota women's high school shot-put record still stands. In 1983, she was living with her lover, Thompson, in the home they had jointly purchased in St. Cloud. Both women were deeply closeted; they exchanged rings with each other but told virtually no one of their relationship. That November, Kowalski suffered devastating injuries in a car accident, which left her unable to speak or walk, with arms deformed and with major brain damage, including seriously impaired short-term memory.
After the accident, both Thompson and Kowalski's father petitioned to be appointed Sharon's guardian; initially, an agreement was entered that the father would become guardian on the condition that Thompson retain equal rights to visit and consult with doctors. By the summer of 1985, after growing hostilities, the father refused to continue the arrangement and persuaded a local court that Thompson's visits caused Kowalski to feel depressed. One doctor hired by the father wrote a letter stating that Kowalski was in danger of sexual abuse. Within twenty-four hours after being named sole guardian, the father cut off all contact between Thompson and Kowalski, including mail. By this time, Kowalski had been moved to a nursing home near the small town where she grew up in the Iron Range, a rural mining area in northern Minnesota.
Surely one reason the Kowalski case is so compelling is that for millions of parents, learning that one's son is gay or daughter is lesbian would be their worst nightmare. That is all the more true in small-town America, among people who are religiously observant and whose expectations for a daughter are primarily marriage and motherhood. "The good Lord put us here for reproduction, not that kind of way," Donald Kowalski told the Los Angeles Times in 1988. "It's just not a normal fife style. The Bible will tell you that." Karen Thompson, he told other reporters, was "an animal" and was lying about his daughter's life. "I've never seen anything that would make me believe" that she is lesbian, he said to The New York Times in 1989. How much less painful it must be to explain a lesbian daughter's life as seduction, rather than to experience it as betrayal.
Since 1985, Kowalski's parents and her lover have been locked in litigation, seeking review as far as the Supreme Court (which declined to hear the case). Thompson's stubborn struggle to "bring Sharon home" has now entered a new stage. In late 1988 a different judge, sitting in Duluth, ordered Kowalski moved to a new facility for medical evaluation. Soon thereafter, based on staff recommendations from the second nursing facility, the court ordered that Thompson be allowed to visit. The two women saw each other again in the spring of 1989, after three and a half years of forced separation. For the past two years, Thompson has visited Kowalski frequently. Kowalski, who can communicate by typing on a special keyboard, has said that she wants to live in "St. Cloud with Karen."
Since their daughter was moved to the new facility near Minneapolis, Donald and Della Kowalski have made only a handful of trips to see her. In May 1990, citing a heart condition for which he had been hospitalized, Donald Kowalski resigned as his daughter's guardian. This resignation set the stage for Thompson to file a renewed petition for appointment as guardian, which she did. But in an April 1991 ruling, Minnesota State District Court Judge Robert Campbell selected as guardian Karen Tomberlin-a friend of both Kowalski and her parents, who supported Tomberlin's request. On the surface, the court sought balance. The judge characterized the Kowalski parents and Karen Thompson as the "two wings" of Sharon Kowalski's family. He repeatedly asserted that both must have ample access to visitation with Kowalski. He described Tomberlin as a neutral third party who would not exclude either side. But the biggest single reason behind the decision, the one that he characterized as instrumental:' seemed to be the judge's anger at Thompson for ever telling Kowalski's parents (in a private letter), and then the world at large, that she and Kowalski were lovers.
The court condemned Thompson's revelation of her own relationship as the "outing" of Sharon Kowalski. Thompson did write the letter to Kowalski's parents without telling Kowalski (who was at the time just emerging from a three-month coma after the accident) and did build on her own an active political organization around the case, composed chiefly of disability and lesbian and gay rights groups. Of course, for most of that period, she could not have consulted Kowalski because the two were cut off from each other.
In truth, though, the judge's concern seemed to be more for the outing of Kowalski's parents. He describes the Kowalskis as outraged and hurt by the public invasion of Sharon's privacy and their privacy," and he blames this outing for the bitterness between Thompson and the parents. Had Thompson simply kept this to herself, the court implies, none of these nasty facts would ever have had to be discussed. But then Thompson would never have been able to maintain her relationship with her lover.
An openly stated preference for ignorance over knowledge is remarkable in a judicial opinion. Ultimately, that is what this latest decision in the Kowalski-Thompson litigation saga is about. One imagines the judge silently cursing Thompson for her arrogance in claiming the role of spouse, and for her insistence on shattering the polite fiction of two gym teachers living and buying a house together as just good friends. Women, especially, aren't supposed to be so stubborn or uppity. One can sense the court's empathetic response of shared embarrassment with the parents, of the desire not to be told and thus not to be forced to speak on this subject.
The conflict in the Kowalski case illustrates one of the prime contradictions underlying all the cases seeking legal protection for lesbian and gay couples. This culture is deeply invested with a notion of the ideal family as not only a zone of privacy and a structure of authority (preferably male in the conservative view) but also as a barrier against unlicensed sexuality. Even many leftists and progressives, who actively contest male authority and at least some of the assumptions behind privacy, are queasy about constructing a family politics with queer sex on the inside rather than the outside.
When such sexuality is culturally recognized within family bounds, "the family" ceases to function as an enforcer of sexual norms. That's why the moms and dads in groups like P-FLAG, an organization primarily of parents supportive of their lesbian and gay children, make such emotionally powerful spokespersons for the cause of civil rights. Parents who welcome sexual dissenters within the family undermine the notion that such dissent is intrinsically antithetical to deep human connection.
The theme of cultural anxiety about forms of sexuality not bounded and controlled by the family runs through a series of recent judicial decisions. In each case, the threat to norms came not from an assault on the prerogatives of family by libertarian outsiders, a prospect often cited by the right wing to trigger social anxieties. Instead, each court faced the dilemma of how to repress, at least in the law, the anomaly of unsanctioned sexuality within the family.
* In a stunning decision two years ago, the Supreme Court ruled in Michael H. v. Gerald D. that a biological father had no constitutionally protected right to a relationship with his daughter, despite both paternity (which was not disputed) and a psychological bond that the two had formed. Instead, the Court upheld the rule that because the child's mother-who had had an affair with the child's biological father-was married to another man, the girl would be presumed to be the husband's child. It was more important, the Court declared, to protect the "unitary family," i.e., the marriage, than to subject anyone to "embarrassment" by letting the child and her father continue to see each other. The Court ruled that a state could properly force the termination of that bond rather than "disrupt an otherwise harmonious and apparently exclusive marital relationship." We are not bound, the Court said, to protect what it repeatedly described as adulterous fathers."
* In Hodgson v. Minnesota last year, the Supreme Court upheld a Minnesota requirement that a pregnant teenager had to notify both of her parents-even if they were divorced or if there was a threat of violence from her family-prior to obtaining an abortion, so long as she had the alternative option to petition a court. The decision was read primarily as an abortion decision and a ruling on the extent of privacy protection that will be accorded a minor who decides to have an abortion. But the case was also, at its core, about sex in the family and specifically about whether parents could rely on the state for assistance in learning whether a daughter is sexually active.
* In two very similar cases this past spring, appellate courts in New York and California ruled that a lesbian partner who had co-parented a child with the biological mother for some years had no standing to seek visitation after the couple split up. Both courts acknowledged that the best interests of the child would be served by allowing a parental relationship to continue, but both also ruled that the law would not recognize what the New York court called "a biological stranger." Such a person could be a parent only if there had been a marriage or an adoption.
Indeed, perhaps the most important point in either decision was the footnote in the California ruling that invited lesbian and gay couples to adopt children jointly: "We see nothing in these [statutory] provisions that would preclude a child from being jointly adopted by someone of the same sex as the natural parent." This opens the door for many more such adoptions, at least in California, which is one of six states where lesbian or gay-couple adoption has occurred, although rarely. The New York court made no such overture.
The effort to legalize gay marriage will almost certainly emerge as a major issue in the next decade. In the past year, lawsuits seeking a right to marry have been filed in the District of Columbia and Hawaii, and activists in other states are contemplating litigation. In 1989 the Conference of Delegates of the State Bar of California endorsed an amendment of that state's law to permit lesbian and gay couples to marry.
A debate continues within the lesbian and gay community about whether such an effort is assimilationist and conservatizing and whether same-sex marriage would simply constitute the newest form of boundary. Much of that debate, however, simply assumes that the social meaning of marriage is unchanging and timeless. If same-sex couples could marry, the profoundly gendered structure at the heart of marriage would be radically disrupted. Who would be the "husband" in a marriage of two men, or the "wife" in a marriage of two women? And either way-if there can be no such thing as a female husband or a male wife, as the right wing argues with contempt; or if indeed in some sense there can be, as lesbian and gay couples reconfigure these roles on their own terms-the absolute conflation of gender with role is shattered. What would be the impact on heterosexual marriage? The law's changes to protect sexual dissent within the family will occur at different speeds in different places, which might not be so bad. Family law has always been a province primarily of state rather than federal regulation and often has varied from state to state; grounds for divorce, for example, used to differ dramatically depending on geography. What seems likely to occur in the next wave of family cases is the same kind of variability in the legal definition of the family itself. Those very discrepancies may help to denaturalize concepts like "marriage" and "parent" and expose the utter contingency of the sexual conventions that, in part, construct the family.…