Montana Supreme Court Rules for Lesbian Mom

Too good to wait for the weekly roundup:

The Montana Supreme Court affirmed a trial court decision granting a “parental interest” to Michelle Kulstad, a lesbian mom who had been co-parenting two children legally adopted only by her ex-partner, Barbara Maniaci. Under state law, the women could not jointly adopt. Maniaci is now married to a man and says she is no longer a lesbian. (Yes, there seems to be an unfortunate trend of that in custody battles.) She was represented by the Alliance Defense Fund, who are sort of the anti-Lambda Legal.

I mentioned the case back in April when it went to the state Supreme Court; I will defer to lawyer Nancy Polikoff for her comments on yesterday’s ruling:

The Montana Supreme Court credited the trial court’s findings: that Barbara had acted inconsistently with the position that she was the only one with a child-parent relationship; that Michelle did have a child-parent relationship with the children; that, as the mental health experts testified, it was in the children’s best interests to continue their child-parent relationship with Michelle.

Polikoff notes that only one justice dissented. One of the seven who concurred, James C. Nelson, also wrote “a separate opinion championing the rights of lesbians and gay men to form families and raise children.”

It is an amazing piece, and worth reading in full (PDF; Nelson’s piece starts on p. 37). Polikoff calls it “some of the strongest and most passionate language I have ever read in a court opinion”—and she has read a lot of court opinions. Here is an extract:

Maniaci and her defense team attempt to avoid the one issue that makes this case uniquely important—the elephant in the room: whether homosexuals in an intimate domestic relationship each have the right to parent the children they mutually agree that one party will adopt (or, presumably, conceive). . . .

I am convinced that until our courts, as a matter of law, accept homosexuals as equal participants with heterosexuals in our society, each person with exactly the same civil and natural rights, lesbian and gay citizens will continue to suffer homophobic discrimination. Regrettably, this sort of discrimination is both socially acceptable and politically popular. Naming it for the evil it is, discrimination on the basis of sexual orientation is an expression of bigotry. And, whether rationalized on the basis of majoritarian morality, partisan ideology, or religious tenets, homophobic discrimination is still bigotry. It cannot be justified; it cannot be legalized; it cannot be constitutionalized.

Every person in Montana is entitled to human dignity; every person in Montana is entitled to individual privacy; and every person in Montana is entitled to seek happiness in all lawful ways. These are  fundamental rights guaranteed, respectively, by Article II, Sections 4, 10, and 3 of the Montana Constitution, and no person may be denied these elemental, natural rights because of his or her sexual orientation. Indeed, while it will, no doubt, come as a shock to some, the fact is that lesbian and gay people are not excepted out of the protections afforded by the Montana Constitution. Lesbian and gay Montanans must not be forced to fight to marry, to raise their children, and to live with the same dignity that is accorded heterosexuals. That lesbian and gay people still must fight for their fundamental rights is antithetical to the core values of [the Montana Constitution] and speaks, in unfortunate clarity, of a prevalent societal cancer grounded in bigotry and hate.

Indeed. Let’s hope that if the Langbehn v. Jackson Memorial Hospital case in Florida goes to appeal, the judges feel a similar need to eradicate that cancer.