PFLAG OMAHA - Community News Archive: May 2003

By Joan Biskupic, USA TODAY
Donna Colley and Margaux Towne-Colley, a lesbian couple bringing up a son in Omaha, face an ongoing dilemma.

Nebraska law does not allow Margaux Town-Colley, left, and Donna Colley to be legal parents to their son, Grayson.
By Anne Ryan for USA TODAY

They could stay in Nebraska, where Colley has a satisfying job as a lawyer, the couple own a home and are close to their neighbors. It's also where state law does not allow both women to be legal parents to Grayson, a blond, blue-eyed toddler who was delivered by Towne-Colley after she was artificially inseminated with sperm from an anonymous donor.

That leaves the couple with another option: Leave Nebraska and build a new life in one of about a dozen states that recognize same-sex couples as parents.

Such legal status isn't just symbolic. Because Colley can't be a legal parent to 16-month-old Grayson under Nebraska law, the child would not be entitled to government benefits if Colley were to become disabled or die. The boy would not be guaranteed support payments from Colley if the two women were to split up. And if Towne-Colley were to die, Colley wouldn't automatically receive custody of the boy.

Legal analysts say the choice they face is typical of the forces that are transforming family law across America. Gay and lesbian couples increasingly are going to court seeking to adopt children, acquire rights as parents, take on shared last names and secure a range of benefits similar to those enjoyed by heterosexual couples.

Nearly three years after Vermont approved civil unions for homosexual couples, the evolving acceptance of such couples nationwide is reflected in recent court decisions in which judges have looked not only at biology when determining who is a "parent," but at the roles people play in households. Many judges are saying sexual orientation shouldn't matter in deciding what makes a family. A few conservative groups are fighting the tide, without much success. (Related story: A chronology of key cases)

Recent cases in Pennsylvania and Delaware symbolize the new age in family law, and judges' increasing flexibility in defining parental roles. Courts in those states ordered lesbians to pay child support for children they had been rearing with their partners before the couples split up.

"People are recognizing that these non-traditional families are here to stay, and courts are finding ways to support the children," says Susan Becker, professor at the Cleveland-Marshall College of Law at Cleveland State University.

But as Colley and Towne-Colley's situation suggests, the rules aren't the same for everyone.

State laws — and local attitudes — vary widely when it comes to adoption, child support, domestic partnerships and other issues that affect same-sex couples. Courts, laws and government policies in conservative states in America's heartland and in the South generally are less tolerant of efforts to give gay and lesbian couples the same rights as heterosexuals:

Nebraska's Supreme Court last year refused to allow a lesbian to formally adopt the boy whom she and her partner (the birth mother) are rearing. Such "second parent" adoptions, which allow a second adult to assume responsibility for a child without the biological parent losing any rights, are legal for gay and lesbian couples in California, Connecticut, Delaware, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, Vermont and the District of Columbia. In a dozen other states, some local courts have backed such arrangements.
Four states — Texas, Oklahoma, Kansas and Missouri — still ban sex between consenting homosexual adults, although the laws are rarely enforced. The U.S. Supreme Court on March 26 will consider a challenge to Texas' law.
Eight states and about three dozen cities and counties — mostly on the East and West coasts — now provide benefits for the partners of their gay and lesbian public employees, gay-rights advocates say.
No group tracks all cases involving gay and lesbian family issues. But those on both sides of the debate over whether gay and lesbian parents should be granted more rights agree that homosexuals' increasing aggressiveness on family issues has won them gains in courts and beyond.

"In the past, when gay and lesbian couples tried to adopt, they really couldn't identify themselves as gay," says Michele Zavos, a Washington, D.C., lawyer who specializes in gay family law. "Now, they can, either when going through a second-parent adoption or with an agency."

The rising number of same-sex couples seeking family rights has been a call to action for some conservative groups that oppose them. And some judges continue to express disdain for same-sex parents, saying that homosexuality is reason enough to keep someone away from a child.

"Homosexual conduct of a parent ... creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children," Alabama Supreme Court Chief Justice Roy Moore wrote last year, when his court agreed with a lower court's decision to limit custody for a lesbian mother.

Overall, however, even some groups that oppose expanded rights for homosexuals acknowledge that the trend in state family courts is running against them.

"It's becoming a tougher battle each day," says Peter Sprigg, senior director of cultural studies at the Family Research Council, a Washington, D.C., group that wants the law to recognize only marriages between men and women. "We're probably losing ground."

Gay-rights advocates say it's all a reflection of the rising profile of gay men and lesbians in politics, the workplace and everyday life. "People know now that gay and lesbian relationships are not exceptional," says Patricia Logue, a lawyer in Chicago for the Lambda Legal Defense and Education Fund. "Now, we're seeing what the political winds will bear in each state."

'I am a stranger to my child'

Same-sex couples and their families have become hot topics for TV shows, movies and media reports in recent years. The increasing openness of same-sex couples, fueled by the successes of the gay-rights movement, has made it seem as though there has been an explosion of such families.

But firm numbers are difficult to come by. The U.S. Census Bureau did not collect figures on same-sex couples until 2000, so there are no reliable statistics on the growth in such households. The 2000 Census found 1.2 million people living in households with unrelated adults of the same sex, but analysts say that figure is low because it was derived from a part of the Census form that some people ignored.

Similarly, estimates of children of gay or lesbian parents vary widely. Judges have cited various reports that put the number of children living with at least one gay or lesbian parent at 6 million to 12 million.

"The sheer number of support groups, magazines and Web sites for gay and lesbian parents suggests that the number is significant," says Denver lawyer Kim Willoughby, who specializes in issues regarding same-sex couples.

Advances in reproductive technology, including artificial insemination, egg donation and in-vitro fertilization, have given gay men and lesbians ways to become parents beyond adoption.

Although it has become easier for same-sex couples to work with private adoption agencies, they sometimes do not disclose their sexual orientation, making reliable statistics about such adoptions difficult. Gay men or lesbians who adopt foreign children typically have one partner adopt as an individual, and the other partner initiate a second-parent adoption later.

After Towne-Colley, 38, got pregnant two years ago, she and Colley, 43, planned to return briefly to Vermont, where they had a civil union ceremony in 2000. (Towne added Colley's name to hers that year.) They wanted Grayson to be born there because the state would allow both women to be listed as parents on his birth certificate. But they were still in Nebraska in October 2001, when Grayson was born nine weeks early.

Working around Nebraska law, the couple drafted wills, a parenting agreement and other papers that spell out their responsibilities for Grayson. "We are trying to do everything we can to tie ourselves together legally and bind me to our son," says Colley, whose salary and benefits provide for the family.

Still, Colley says, "under the law, I am a stranger to my child." For now, she and Towne-Colley are staying in Nebraska and not challenging its parenting laws. They are mindful of last year's state Supreme Court decision against a lesbian couple and say they don't want to risk an adverse ruling.

Amy Miller, a lawyer for the ACLU of Nebraska, represented the lesbian couple whose case went to Nebraska's high court. The court said state law forbids a second adult from adopting a child unless the birth mother (in this case, one of the partners) gives up her rights to the child.

Miller says her unidentified clients wanted to make sure that if the birth mother died, their 3-year-old son, Luke, could receive Social Security and other benefits tied to her partner. After they lost in court, they moved to Portland, Ore. Thanks to a second-parent adoption there, Miller said, they both are Luke's legal parents.

In Cincinnati, Cheryl, 41, and Jennifer, 36, are rearing a 2-year-old boy who is the product of an egg harvested from Cheryl, fertilized by sperm from an anonymous donor, and implanted in Jennifer.

The couple, who agreed to be interviewed if only their first names were used, say they might seek shared parental rights. But they know that Ohio courts often reject such efforts. They say moving out of state is not an option. "This is just as much our state as anyone else's," Cheryl says.

Focusing on 'functional' parents

Ohio has been a battleground for the new generation of family law cases. The state Supreme Court has handed victories to those on both sides of the issue.

During the past year, the court endorsed shared last names for gay and lesbian couples but rejected second-parent adoptions for homosexuals. In Cleveland Heights, voters gave health benefits to gay and lesbian partners of city employees. An effort to reverse the move through a referendum failed.

"I think you're going to see a backlash soon," says Robert Knight, director of the Culture and Family Institute at Concerned Women for America, a Washington, D.C., group that opposes rights for same-sex couples. "Their movement is displacing marriage as the gold standard in family law."

But Duke University law dean Katharine Bartlett says judges have struggled with nontraditional families since divorce rates jumped three decades ago. "Courts aren't trying to contribute to the demise of traditional families. But they recognize the reality of families today and 'functional' parents."

That was evident in a Pennsylvania case in December. The state Superior Court affirmed a trial judge's order that a lesbian should pay support for five children she had been bringing up with her ex-partner. That case followed one in Delaware in which a judge ordered a woman to pay support for a son that her former partner had through in-vitro fertilization.

But providing for children isn't always the overriding factor in such cases. Last year in Idaho, a local magistrate denied a gay man, Theron McGriff, custody of his two children from a marriage to a woman. The magistrate said McGriff, 38, couldn't visit them if he continued to live with another man. Idaho's Supreme Court agreed to hear McGriff's appeal.

"Sexual orientation should be irrelevant," says Shannon Minter, McGriff's attorney. "Unless you're living under a rock, you know the way people live has changed."

BY BOB GLISSMANN AND KARYN SPENCER
WORLD-HERALD STAFF WRITER

The Rev. Robert Hotz's decision to invite a gay man to talk during a Mass at Creighton Prep sparked a buzz among students in the days before Hotz's resignation.

The president of the private Jesuit high school resigned Tuesday after the school's governing board questioned his "judgment and leadership," said Jim O'Brien, chairman of Prep's board.

Hotz couldn't be reached for comment.

Having the speaker at the Mass last Wednesday "was just one issue in a series," O'Brien said. "It was a flash point, but another incident in what we felt was a lack of correct judgment.

"I can't emphasize enough this is not the driving issue here. . . . This was the flash point."

The speech got students talking, several of them said.

The speaker, Don Fraynd, a 1990 Prep graduate who had taught at the school for six years, talked during Mass about the importance of service and his life as a gay man and a teacher. He also talked about how much support he gets from his male partner.

Catholic doctrine says that acting on homosexuality, not homosexuality itself, is a sin.

Senior Paul Karrer thought the theme of Fraynd's speech was "opening up to different types of people who might not have friends."

"He's an openly gay guy," Karrer said, "and apparently that really upset some of the really conservative and intolerant folks."

Senior David Healy said the students he talked to didn't have a problem with the topic, but questioned whether Mass was the right venue.

In his theology class, he said, several students asked whether conduct that the church teaches is wrong should have been discussed in a formal religious setting.

Healy was out of town the day of the Mass, but other students said "having that during Mass was kind of shocking."

The chairwoman of an Omaha-area organization for gay and lesbian rights said any link between Hotz's resignation and the speech "doesn't help Nebraska's image."

"Anytime we have a prominent organization trying to mute real stories that have to do with gay and lesbian relationships, it's just further indication that we're not wanted, that we need to be quiet and that our basic civil rights will not be upheld," said Omahan MJ McBride, chairwoman of Citizens for Equal Protection.

Hotz already had planned to leave Creighton Prep at the end of the school year. He had announced in January that he would resign, effective June 30, after serving eight years as president.

O'Brien said the board's five-member executive committee, which was holding its regularly scheduled meeting Tuesday, "had an extended discussion of concerns that have been brought to the committee's attention regarding Hotz's judgment and leadership. The executive committee decided to accept Hotz's immediate resignation as president."

Hotz offered the resignation after what O'Brien called "a healthy discussion" with him.

"Father Hotz agreed it was in his best interest and in the best interest of the school that his resignation be tendered now," O'Brien said. "This was in no way confrontational."

O'Brien said a letter about the resignation was sent to Prep students, faculty and staff.

"We are extremely grateful for everything that Bob Hotz has done for Creighton Prep," O'Brien said, noting the school's successful capital campaign, a "complete campus makeover" and a strong leadership team that Hotz helped put together.

Earlier this month, the Rev. Thomas Merkel, superintendent of schools at Holy Rosary Mission at the Pine Ridge Indian Reservation in South Dakota, was announced as Hotz's successor. He had been scheduled to start July 1, but O'Brien said he hopes Merkel can start sooner.

Hotz plans to travel to Mexico, where he will be immersed in a Spanish-speaking environment to learn the language, O'Brien said.

Creighton Prep, which is at 72nd Street and Western Avenue, has an enrollment of 1,021 boys in grades nine through 12.

World-Herald staff writers Cliff Brunt and Todd Cooper contributed to this report.

BY TODD COOPER
WORLD-HERALD STAFF WRITER

A national civil rights group has targeted Nebraska's defense of marriage law in a federal lawsuit, saying it violates the U.S. Constitution by completely shutting out gays and lesbians from the political process.

The Lambda Legal Defense Fund, along with the Nebraska and national Civil Liberties Union, filed the lawsuit Wednesday in U.S. District Court against Nebraska Gov. Mike Johanns and Attorney General Jon Bruning.

Their complaint says that Section 29, which was Initiative 416 before being enacted, bars "lesbian, gay and bisexual people from using the ordinary political process to seek important legal protections that all other Nebraskans already have."

The lawsuit, on behalf of the ACLU-Nebraska and five same-sex couples, seeks to overturn the law. Nebraska voters overwhelmingly enacted the "defense of marriage" act.

Initiative 416 read: "Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership or other similar same-sex relationship shall not be valid or recognized in Nebraska."

David Burkel, senior staff attorney for Lambda, said the civil rights group targeted Nebraska because it has the most restrictive and oppressive defense of marriage act. Among the 36 states with defense of marriage acts, Nebraska's is the most extreme because it specifically targets same-sex relationships, not simply marriages, said Amy Miller of the ACLU Nebraska.

Burkel predicted that Nebraska's law would be declared unconstitutional because it violates the equal protection law. He noted that Amendment 2, a similar Colorado law, was overturned.

"These citizens have had a fence put around them, and they've been told that they can't participate in the democratic process," Burkel said. "They have been targeted and punished for who they are."

Much of the lawsuit deals with future harm, saying the law could prevent gays and lesbians from visiting a same-sex partner in the hospital; making care decisions when a same-sex partner is incapacitated; taking bereavement leave when a same-sex partner dies; or making funeral arrangements for a same-sex partner after death.

"The plaintiffs do not ask for marriage, civil unions or domestic partnerships," the complaint says. "Instead, they seek nothing more - and nothing less - than a level playing field, an equal opportunity to convince the people's elected representative that same-sex relationships deserve legal protection."

Five same-sex couples - two from Lincoln and three from Omaha - have joined the lawsuit.

One of them, Omaha attorney Donna Colley and her partner, Margaux Town-Colley, said some lawmakers, including Johanns and state senators, have told them that they can't even talk about their "plight" because of Section 29.

"This is not about us hoping to get (same-sex) marriages recognized," Colley said. "It's that we've been told that there's no point in you trying to engage in the political process."