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'Very brave' court decision in Kansas

Published on -3/3/2013, 8:06 AM

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It's not often that such entities as the American Civil Liberties Union and the National Center for Lesbian Rights point to Kansas as a progressive leader in matters pertaining to gay parenthood. But in recent weeks, that's exactly what's happened.

Representatives of the ACLU and child welfare and gay rights organizations had nice things to say about our state's Supreme Court after it ruled last month that children who have been raised by two moms -- one the birth mother and the other the biological mother's former partner -- were best-served by having two parents, even if one of the parents wasn't a man.

Linda Elrod of the Children and Family Law Center at Washburn University accurately called it "a very brave ruling."

Even so, it's important not to overstate the Kansas Supreme Court's decision in Frazier v. Goudschaal. This narrow ruling, which addressed a specific set of circumstances, has been enthusiastically and incorrectly interpreted by some bloggers and activists as an endorsement of gay rights, gay adoption and gay marriage. Such readings, or non-readings, of the 34-page ruling are an unwarranted stretch.

It's fair to say that the court took the state a step forward in recognizing a co-parenting agreement between two lesbians as a binding contract and by concluding that it's in the best interest of children who have been raised by two mothers to continue the relationship with the woman who was not a biological parent, even after the domestic partnership ends.

In this case, two women who were in a committed relationship had two children through the artificial insemination of one of the women. They executed a co-parenting agreement that extended parental rights to the woman who was not the birth mother, but when the couple split up, the birth mother sought to end the other women's relationship with the children.

The district court ruled against the birth mother, gave the former partner visitation rights and ordered her to pay child support. The birth mother appealed and, in a rather ironic and cynical twist, argued that the parenting agreement was not legally enforceable because only a man and a woman could be parents.

The Supreme Court rejected her argument, but it is clear that without the co-parenting agreement, her former partner would have had no grounds for claiming parental rights. In that sense, this was a case about a contract.

However, the Supreme Court also framed the ruling around the rights of the children and accepted evidence from the National Association of Social Workers that the sexual orientation of parents is irrelevant to children's well-being, that these children would be harmed by losing their relationship with one of their mothers.

"Denying the children an opportunity to have two parents, the same as children of a traditional marriage, impinges upon the children's constitutional rights," the ruling stated.

Moreover, the court suggested that the state was not compromised by the co-parenting contract: "The agreement is not injurious to the public because it provides the children with the resources of two persons, rather than leaving them as the fatherless children of an artificially inseminated mother. No societal interest has been harmed; no mischief has been done."

That finding will rankle opponents of gay marriage and proponents of traditional family values, and it will be interesting to see whether Frazier v. Goudschaal becomes fodder for Gov. Sam Brownback's effort to bring the appointment of appellate judges under his control.

Ultimately, however, the significance of this ruling may be social, not legal. Despite voters' overwhelming approval in 2005 of a constitutional amendment limiting marriage to heterosexual couples, this case reminds us that gay people are establishing families in Kansas.

What's more, the children in those families have rights that trump concerns about the gender of their parents.

Gwyn Mellinger is professor and chairwoman of the Department of Mass Media at Baker University in Baldwin City.

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