I Thought It Was Adam & Steve, Not Adam & Eve

The SF Chronicle calls this an "unusual" custody battle. I don't know; live in the Bay Area long enough and you meet plenty of people who travel the path of this couple, only without the added angst of involving a child: Santa Cruz Court Set To Hear Unusual Custody Case

A Santa Cruz court is slated to hear a custody dispute between former lesbian partners in which the biological mother has become romantically involved with the sperm donor father of her 10-month-old twins.

Kim T. Smith of Santa Cruz has sued for joint custody of the twins, saying she and former partner Maggie Quale agreed to raise the boys together.

Qaule and the boy's biological father, 28-year-old Shawn Wallace, now live together and argue they should be able to fully parent the children.

Quale and Smith never registered as domestic partners with the state. But the two women are listed as the boys' parents on their birth certificates, and the twins carry the hyphenated last name Quale-Smith.

I am sympathetic to the theory that someone can be "born gay." But, there are also plenty of people who grow into it. Call them "bi," "questioning,"closeted," "self-loathing," or whatever. There is a still a time when someone can choose to be gay, and then choose not to be gay, as in the case of Ms. Quale.

This, of course, undercuts the argument that sexual orientation is an immutable characteristic that can support the present agitation for special treatment under the law for gays. Without a plausible claim to immutability, there really is no constitutional requirement that sexual orientation be allowed the same level of equal protection as is extended to race and nationality. (gender actually has a lower level of protection, but you already knew that, right?)

It's an oddity that the publicly acceptable position is that gays can't do anything about their orientation. And yet, we all know "gays" who were in heterosexual relationships, were married, had kids, and then came out of the closet. We all know polyamorous types - the proto-typical cute college girl with a lesbian past, or the young hustler living off of an older man, not to mention prisoners - who aren't *really* gay, yet who enter into gay relationships for whatever reason. Yet, once you're in, you apparently can't get out; witness the hostility directed to the gay therapy movement, which seeks to rehabilitate gays and return them to the straight path. Not sure how effective that is; but there are enough positive results floating around that suggest that, for some, orientation is as much psychological as it is biological.

I don't know what motivated people to vote for Prop. 8. Maybe there was "hate" involved. But, there has also been a feeling out there that there has been a rush to "pass" gay marriage, whether through the courts or the legislature; and that the rush was exactly that - a rush, without any heed for what we were doing. There are people who are born gay, but there are also plenty out there who made a lifestyle choice for whatever reason. I'm not sure that second group is deserving of special constitutional protection on the level accorded to racial minorities. But, it's impossible to sort out the immutable gays from the lifestyle gays without seriously intrusive questioning: when was your first Madonna concert, Mr. Smith? But, I don't think it's unreasonable for voters to have declared a time-out to decide if we want to create a legal environment where, as in the Quale's case, a non-biological parent can claim parental rights over those of the biological parents by virtue of a failed sexual relationship.