When the Montana Supreme Court yesterday upheld a lesbian mom’s right to custody over two children she shared with a partner, the 6-1 decision didn’t just secure a gay parent’s rights to see her kids, but set a new tone in the state’s high court: gays are equal, and the law must treat them as such.
The scene was Michelle Kulstad’s joint custody fight over a a 9-year-old boy and a 6-year-old girl she adopted (in 2001 and 2004, respectively) with now-former partner Barbara Maniaci, who left Kulstad and married a man. The twist: Montana state law prohibits two same-sex partners in a relationship to adopt, which meant Maniaci retained legal custody, effectively letting Kulstad parent the kids at Maniaci’s pleasure (in the law’s eyes). When the pair split, Kulstad in January 2007 filed for joint custody; Maniaci filed a motion to dismiss. The case went through the ringer (during which the former partners shared custody) before ending up in front of seven Supreme Court justices.
And while Justice Brian Morris wrote the majority opinion (“Maniaci cannot rewrite the history of the fact that she and Kulstad lived together for more than 10 years and jointly raised the minor children in the same household.”), it was Justice James Nelson who went one step further.
In an additional concurring decision, Nelson wrote: “I remain absolutely convinced … that homosexuals are entitled to enjoy precisely the same civil and natural rights as heterosexuals, as a matter of constitutional law. … [The ruling shows gays are ] equal participants with heterosexuals in our society … 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. Sadly, this case represents yet another instance in which fellow Montanans, who happen to be lesbian or gay, are forced to battle for their fundamental rights to love who they want, to form intimate associations, to form family relationships, and to have and raise children – all elemental, natural rights that are accorded, presumptively and without thought or hesitation, to heterosexuals.”
Naturally, Maniaci’s attorney Linda Osorio St. Peter isn’t so pleased: “The oldest fundamental liberty interest recognized by the U.S. Supreme Court is the parental right to the care and custody and control of your own child. … This decision is a significant erosion into those constitutionally protected rights of a parent to raise his or her own child.” Justice Jim Rice agreed about the whole parenting thing in his dissent.