Last edited: August 01, 2004

Lesbian Couple Challenging Gay Adoption Ban in Utah

Salt Lake Tribune, July 7, 2003
P. O. Box 867, Salt Lake City, UT 84110
Fax: 801-257-8950

By Rebecca Walsh, The Salt Lake Tribune,

Sonja Kaufman and Kari Fuller’s lives are cluttered with the accessories, the decisions, the sweet angst of family.

Baby pictures hang in a cluster on the wall. An Elmo doll is tucked into a corner. Children’s stories and board games fill the bookshelves. Agonized by sending the baby to day care every day, 38-year-old Fuller decided to stay home to take care of the kids. And Kaufman and Fuller are beginning to realize their two-bedroom townhome is too small for four.

Just like any other family.

But Kaufman and Fuller are no ordinary family.

As lesbians in Utah, they face the prospect of having their household split if they separate or one of them dies. Utah law does not recognize their relationship or Kaufman’s connection to one of their two children—7-month-old Karson. Although she formally adopted 6-year-old Angus, legislation added to state code in 2000 specifically prohibits her from becoming the legal parent of the daughter she is raising.

The women are willing to upend their anonymous existence to become plaintiffs in a lawsuit challenging the adoption statute.

“The law doesn’t make sense to me,” says 46-year-old Kaufman. “They find me fit to parent one child and then say I can’t parent the other one. I’m parenting Karson anyway. But there’s that little bit of anxiety, knowing that, in a way, you’re living on the edge.”

It’s not that they are gay rights activists. The women say they just want what is fair. And in the wake of the U.S. Supreme Court’s landmark decision to strike down sodomy laws, they figure now is the time to challenge Utah’s ban on gay adoption.

Human rights groups nationwide claim the ruling will be a catalyst to overturn state statutes that treat gay families differently, from restrictions on medical benefits to some states’ refusal to recognize marriages between gay couples.

Utah’s gay community is more restrained, quietly strategizing.

“All of the laws that discriminate against homosexuals in Utah have the same underpinnings—the sodomy law,” says attorney Laura Milliken Gray, who keeps a list of potential plaintiffs like Kaufman and Fuller. “They’ve always tried to use that as a sledgehammer to pound us over the head. That’s gone now. The implications are huge.”

Utah advocates are not talking about the emotionally charged issues of partner benefits and same-sex marriage yet. Instead, they are focusing on the sympathetic instances of adoptions thwarted—cases where their legal footing is well-grounded and political opposition is weaker.

Two weeks ago, a split court determined a Texas sodomy law specifically aimed at homosexuals violated the right of consenting adults to choose what they do in their bedrooms, effectively nullifying similar laws in 13 other states, including Utah. Most of the justices concluded the law violated the U.S. Constitution’s due process and equal protection provisions by singling out gays.

Utah gay and lesbian advocates say the state’s adoption law does the same thing.

“Sodomy has been used to deny equal rights and equal protection to a group of people,” wrote Paula Wolfe, director of the Gay & Lesbian Community Center of Utah in an opinion column for The Salt Lake Tribune. “Lesbians are more likely to lose custody of their natural-born children, and men and women without any criminal conviction are denied the right to adopt a child.”

Three years ago, lawmakers debated a bill drafted by Brigham Young University Law School professor Lynn Wardle to prohibit co-habiting adults, heterosexual or homosexual, from adopting children in state foster care or their partner’s children.

State Rep. Jackie Biskupski, the only openly gay member of the Legislature, says the adoption ban and Utah’s sodomy law are carefully written to make it appear they do not target gays, but the effect is the same.

“The laws are connected,” the Salt Lake City Democrat says. “Clearly the laws are discriminatory.”

At the time, gay rights groups protested loudly, pointing to the sodomy law as lawmakers’ justification. Their complaints did no good.

Scott Clark, an attorney on the Division of Child and Family Services board when it adopted administrative rules on which the law was based, says state leaders simply were looking out for the welfare of children.

“The state has a compelling reason to protect children,” Clark says. “Some relationships are sanctioned and people in those relationships can adopt. I’m not trying to criticize any other nonstandard relationship, but I think it is a legitimate interest of the state to prefer families with a mother and father.”

Sutherland Institute President Paul Mero backs up Clark. “A family is more than love,” he says. “There is a structure involved. There are complementary roles between a male and a female in a family that a homosexual couple just does not have.

“It doesn’t matter whether we’re talking about homosexual couples or a single woman who decides she needs to have a child in her life. Those children are at risk.”

Kaufman and Fuller defy Mero and Clark to prove that.

Together for 10 years, the women say they are as committed as any heterosexual married couple. Although raised outside Utah—Fuller in Illinois and Kaufman in Idaho—both come from LDS backgrounds. They served missions for The Church of Jesus Christ of Latter-day Saints. Kaufman works for an insurance company. Fuller is a full-time mom.

They were preparing to become foster parents when Fuller learned she was pregnant after the eighth round of artificial insemination. Kaufman managed to adopt Angus after he was born. But Karson was born after the adoption ban passed. Kaufman and Fuller share legal guardianship of the little girl so Kaufman’s health benefits can cover her. But Karson still falls into a limbo that scares her mothers.

“I worry what would happen if something happened to me,” Fuller says. “I have family members who think it might be the right thing for them to do to get custody of my children. That’s scary. I’m a little nervous.”

Before lawmakers changed the statute, Gray says, Utah judges reviewed gay adoptions as a matter of course. Only one of her cases was denied by a Davis County judge.

Since the ban was adopted, DCFS records show even single-parent adoptions have dropped. In 1999, the year before the adoption ban went into effect, 30 single parents adopted foster children. The next year, that number dropped to 14. And last year, 12 single men and women adopted.

Second-parent adoptions have been sanctioned by the highest courts of four states: Vermont, Massachusetts, New York and New Jersey. Courts in 21 other states have allowed second-parent adoptions for same-sex couples. And internationally, gay couples are allowed to adopt in Ontario, Canada; London and Manchester, England; and in the Netherlands.

Two other states—Florida and Mississippi—block gay couples from adopting. And Arkansas restricts gays and lesbians from being foster parents. Two gay couples who are foster parents have challenged Florida’s 16-year-old law. That case is pending before the 11th U.S. Circuit Court of Appeals.

Gray has 40 families—families where the nonbiological parent adopted the first child, but Utah’s ban blocked adoption of the second—on her list of potential clients. “In those families, the second child is a second-class citizen in their own home,” Gray says. “One child gets two legal parents with all the benefits that includes—Social Security, inheritance, health insurance. The other child doesn’t get any of that.

“Whenever you have a law that has no rational basis except discrimination, you get bizarre and irrational results like this. I’ve been waiting since that ban was passed to challenge it. I can’t wait.”

While Gray anticipates the legal battle, some state lawmakers say she has her work cut out for her connecting the Supreme Court’s decision on sodomy laws and the ban on gay adoptions. They question a lawsuit’s chances.

“In my mind, they’re two separate and distinct issues,” says state Sen. John Valentine. “The sodomy law applies equally to heterosexuals as well as homosexuals. And the adoption law was a public policy decision that homosexual relationships are not a proper place for the raising of children.

“People who want to foster an agenda will try to argue the connection,” the Orem Republican says. “But I find nothing in the words of the Supreme Court’s ruling.”

But Mero figures the high court’s decision might give gay rights groups a basis for litigation.

“The Supreme Court punted and is going to allow a multiplicity of lawsuits,” he says.

  • Tribune reporter Elizabeth Neff contributed to this story.

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