Gwyneth Mellinger: Kansas progressive on gay parenthood?

03/01/2013 5:25 PM

03/01/2013 5:25 PM

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 is exactly what has 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 that children who have been raised by two moms – one the birth mother, 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 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.

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 is in the best interest of children who have been raised by two mothers to continue the relationship with the woman who is 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 woman’s relationship with the children.

The district court ruled against the birth mother and 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 court’s ruling stated.

Moreover, the court suggested that the state was not compromised by the co-parenting contract: “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. Yet 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.

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