DATE: Monday, July 28, 1997                 TAG: 9707260020

SECTION: LOCAL                   PAGE: B7   EDITION: FINAL 

TYPE: Opinion 

SOURCE: Ann Sjoerdsma 

                                            LENGTH:   81 lines

ADOPTION, CUSTODY CASES EXPLOIT N.C. SAME-SEX MARRIAGE BAN A FINAL ADOPTION MUST BE A FINAL ADOPTION IN ALL STATES. PERIOD. NO UNCERTAINTY. NO INSTABILITY.

Sheryl Rose Erez and Aviva Shira Starr lived together in Washington state in a committed love relationship. In 1993 Erez gave birth to a girl. The next year, Starr adopted the child. Two mothers, one family, not so unusual today.

In 1995 the women moved with their daughter to North Carolina. A year later, they separated, Erez taking a job in Georgia and leaving the child with Starr, at least until May 1997. Or so she thought.

On the advice of counsel, Starr filed for custody of the 4-year-old. In March, a Durham judge gave her temporary physical custody and granted both mothers temporary legal custody. Now the two gay women are involved in a legal dispute that appears to be nationally unprecedented.

Erez claims that North Carolina's new same-sex marriage ban invalidates Starr's adoption here.

And her case is not the only one in the Tar Heel State to exploit this ban. Lawyers for a heterosexual mother have also used it to try to discredit an openly gay father in a high-profile N.C. custody case between divorced spouses.

Though marriage has long been defined in North Carolina as between a male and a female, the state expressly banned single-``gender'' marriages in 1996 - when the nation was reeling from ground-breaking Hawaii court decisions.

Frankly, I can't see how the ban - which has to do only with legal capacity to marry - has relevance in either case. But I can see it causing much harm to children.

To recognize Starr's adoption, Erez argues, would violate ``public policy'' - meaning the good of the people - because, somehow, it would run afoul of the gay-marriage ban. (Virginia prohibited such unions in 1975.)

Although North Carolina honors all out-of-state adoptions, a rarely applied public-policy exception does exist.

The N.C. Supreme Court will soon decide in Pulliam vs. Smith whether gay Fred Smith may retain custody of the two young sons he's cared for since 1990 when his ex-wife Carol Pulliam left him for another man. Smith's lover has lived with him and the boys, now 8 and 11, since 1995 - the first time Pulliam sought custody.

I'm not gaga over the idea of same-sex marriage, which became a possibility when a Hawaii court ruled in 1993 that limiting marriage to opposite-sex couples might violate that state's liberal constitution. A trial judge's 1996 ruling that Hawaii's marriage licensing law is indeed unconstitutional - thus opening the way for future gay marriages - is now on appeal.

But neither am I so alarmed over the ``new family'' that I have jumped on the ``ban''-wagon. Such legislation seems like so much homophobic posturing to me. There is not a groundswell of popular or legal support for gay marriages. Even in Hawaii, a constitutional amendment to reserve marriage to opposite-sex couples has been placed on the November 1998 ballot.

Still, when I heard about the Ezra-Starr and Pulliam-Smith cases, I had to gasp: ``What a world we live in.''

A lesbian mother uses what must be to her a despicable law to try to beat her former partner in court. How ironic. How hypocritical.

But, then again, why should gay women be any more selfless and high-minded than other quarreling ex-lovers in domestic disputes?

The Durham judge who heard arguments in the Erez-Starr case July 10 postponed her decision and is said to be ``carefully deliberating.''

In Pulliam vs. Smith, an extraordinary battle of the sexes occurred. His ``crimes against nature'' were pitted against her ``crimes against nature.'' His homosexuality against her adultery. Just the sort of passion play children don't need.

And wait a minute - Smith and his lover didn't even try to get married!

Some points seem clear. Neither adoption nor custody hinges on a parent's marital status. Both are between parents and children, not between spouses or lovers. Using the marriage ban as an argument in either instance is just so much prejudice-stoking.

The N.C. Supreme Court's ruling in Pulliam should turn on the actual, if any, harm that Smith's homosexual behavior may have caused his sons - harm being an indicator of parental fitness.

As for Erez and Starr, a final adoption must be a final adoption in all states. Period. No uncertainty. No instability. Otherwise, the mere change of a parent's heart could cause a child much suffering.

MEMO: Ann G. Sjoerdsma, an attorney, is an editorial columnist and book

editor for The Virginian-Pilot.

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