Gay rights lawyer Jon W. Davidson (Los Angeles Times )
SAN FRANCISCO -- When the California Supreme Court struck down a same-sex marriage ban in 2008, the majority ruling reflected a series of decisions the court had already reached in disputes involving gay parents.
Gay rights lawyers said this week that those cases were critical to the court’s historic marriage ruling — later partly overturned by Proposition 8 -- and lamented the fact that the U.S. Supreme Court has little experience in dealing with gay family litigation.
“The U.S. Supreme Court has never decided a lesbian or gay parenting case,” said Jon W. Davidson, legal director of Lambda Legal. “And it’s really important for them to be understanding that same-sex couples have children ….. and to be thinking about actual children, as opposed to hypothetical children.”
In one case, California’s high court considered the parental rights of a woman who donated her eggs to her partner, who was artificially inseminated and gave birth to twins. The gestational mother was infertile, and the genetic mother had a diseased uterus.
That case brought to the court’s attention the myriad ways gay couples were having children.
One same-sex male couple each donated sperm to a surrogate, who bore twins. Later tests show that each man had fathered one of the twins.
Another male couple mixed their sperm and never tried to find out who was the actual genetic father.
The California Supreme Court also resolved a child support dispute between two women who had three children together. One woman bore one of the children, the other the other two. Both women nursed all three, and the children took the hyphenated last names of both partners.
“A number of state courts, including the California Supreme Court, have been dealing with LGBT family issues for over a decade,” said Kate Kendell, executive director for the National Center for Lesbian Rights. “They feel much more comfortable with the issues and are farther along in their understanding of the interrelationship of the law to these families than the Supreme Court.”
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