Battle of the (Same) Sexes: The Licensing of Gay Marriages by One State Would Have Deep Implications for the Other 49

Article excerpt

The licensing of gay marriages by one state would have deep implications for the other 49.

Like divorcing husbands and wives, partners in collapsing gay unions fight over the children. To the regret of conservatives, who've shown less taste for the fight than homosexual activists, related court cases around the country are paving a legal pathway toward parental prerogatives for same-sex partners that would broaden custody rights.

One recent legal battle illustrates the complexities involved in the issue. A lesbian mother of a child born by artificial insemination challenged her estranged lover in a Wisconsin court about visitation rights; the case ended up in the U.S. Supreme Court.

In 1984, Elsbeth Knott and Sandra Lynne Holtzman held a private wedding ceremony in Boston, exchanging vows and rings without a license. With the aid of sperm from an anonymous donor, Knott conceived and bore a son, H.S. Holtzman-Knott, in 1988. Holtzman supported the family and shared care of the boy. She taught him to skate, bike and fish, and visited his school.

The women, having moved to Wisconsin, split in 1993 after nine years of cohabitation. Holtzman had been barred from adopting the boy in Massachusetts (although the state's law changed after a 1993 court ruling involving female surgeons, see sidebar). Now she returned to court and secured visitation privileges. Knott challenged the court ruling.

In a touching interview, the 6-year-old boy told his court-appointed lawyer, Linda S. Balisle, that he considers both women his parents and wants to continue seeing Holtzman even though it upsets Knott. Balisle asked the Wisconsin Supreme Court to allow the lower court ruling to stand, arguing that it was in the boy's best interest to maintain a relationship with Holtzman "openly fostered and consented to by Knott."

The Wisconsin Supreme Court upheld the ruling, but Knott took her case to the U.S. Supreme Court. In October, Justice John Paul Stevens refused to block the Wisconsin visitation order pending the Supreme Court's decision.

The Lambda Legal Defense and Education Fund, an advocate of gay rights, has sided with Holtzman, who stated in a brief, "If the Wisconsin Supreme Court decision is upset, it will destroy the right of all states to protect the relationships children have with the important people in their lives!" Indeed, the case raised broad issues during the protracted legal battle.

In friend-of-the-court briefs, for example, Lambda claimed that homosexuals make as good parents as heterosexuals, and the organization has provided studies showing that children in homosexual households are not more likely to be homosexuals themselves.

"Marriage is in effect a license to engage in sexuality that might otherwise be prohibited under law," says Evan Wolfson, director of Lambda's "Marriage Project" to legitimize same-sex marriage. "So the existence of [laws against sodomy], which I consider unconstitutionally invasive of people's lives, is an argument for marriage and not against it. …