States grapple with gay rights and definition of the family

Two court cases this week have the potential to push America toward a broadening definition of family that is increasingly inclusive of homosexuals.

In Boston, the state's top court is considering the legality of same-sex marriage. If the justices side with the plaintiffs - seven gay and lesbian couples - Massachusetts could become the first state in the country to sanction gay marriage.

In Miami, a federal appeals court heard from four men who have been barred from adopting the children they take care of because of Florida's categorical ban on adoption by gay individuals. Though Florida is currently the only state with such a law, a ruling could have implications on adoption practices around the country.

"For a long time, courts have had a powerful role to play in redefining family," says Elizabeth Bartholet, a family-law expert at Harvard Law School. "Both [cases] are very important. Partly because one of the major areas in which traditional definitions of family are being challenged has to do with gay and lesbian formations."

And the direction in which courts are moving is slowly shifting. In 1986, the Supreme Court ruled in Bowers v. Hardwick that criminalizing homosexual behavior was acceptable. But in the past five years, there's been what Ms. Bartholet calls a "powerful trend" of courts granting more family rights to gays and lesbians. The high court, also, is revisiting its 1986 ruling in a case this year.

In many ways, the cases heard this week are quite different. No state has yet allowed gays and lesbians to marry (Hawaii and Alaska amended their Constitutions to prohibit same-sex marriage after their courts approved it), while Florida is the only state in the union that prohibits all homosexual adoptions.

But at issue in both is whether a broader definition of family can find legal as well as social acceptance.

Doug Houghton, for instance, one of the plaintiffs in the Florida case, desperately wants to adopt 11-year-old Oscar. He's cared for the boy ever since his father left him eight years ago, and considers him his son. They walk their three dogs together in Miami's upscale Coconut Grove neighborhood, puzzle over Oscar's homework, and go to the movies on Friday nights. But the finality that comes with legal adoption, says Mr. Houghton, is still missing.

"It's the permanence," he says. "It's ignoring the true facts if you deny that it's a true father-son relationship."

That legal recognition is also something that Ed Balmelli and Mike Horgan hope to find through the Massachusetts case. "We love each other, we plan on spending the rest of our lives together, and we want to be married," says Mr. Balmelli simply.

He has a sizeable pension after 22 years at Lucent Technologies. But he's unable to name Mr. Horgan as a beneficiary, since he is not a legal spouse.

And even though the two have taken every legal action they know of - from celebrating a civil union in Vermont three years ago to creating healthcare proxies so that they'll have hospital visitation rights if an accident happens - they still worry about it not being enough. "You only find out in a crisis that you didn't get that last piece of paper," Balmelli says.

But to many social conservatives, marriage is by definition between a man and a woman. And some observers, including opponents of gay-rights, also argue that courts shouldn't be the ones to decide fundamental notions like family.

"We think it would be an extreme example of judicial activism for a court in Massachusetts to redefine marriage," says Peter Spriggs of the Family Research Council in Washington. "Or for a court in Florida to overrule the will of the people" in banning gays from adopting 26 years ago. Such changes, he says, should be the responsibility of legislatures.

Others argue that judicial intervention is often necessary. Until a 1967 Supreme Court decision, some states barred interracial marriage, for example.

The Massachusetts case has garnered international attention, and religious groups, law professors, and other states have combined to file 26 advisory briefs for and against gay marriage. Attorneys general in Utah, Nebraska, and South Dakota asked in theirs that Massachusetts not become "the source of profound friction among states and the federal government by radically rewriting marriage and exporting the controversy to other states."

The Florida case has received less attention, but if the federal court declares Florida's ban unconstitutional, it also could have significant effects. "It's really about two things," says ACLU lawyer Matthew Coles, who argued the case for the four plaintiffs: whether the state is allowed to legislate moral disapproval of a lifestyle - one of its major justifications of the law - and whether good parenting really is contingent on such things as a parent's sexual orientation or marital status.

The state has previously ruled that it is in the best interest of children to be placed with married heterosexual couples. But that has often proved impossible. About one-fourth of Florida's foster-care children are adopted by single parents. Many are never adopted. "These men gave these kids an absolutely priceless gift," Coles says.