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So far, a trial judge and a panel of the Georgia Court of Appeals have kept their rulings in Burns v. Burns simple — viewing the potentially landmark homosexual rights case solely as a child visitation dispute between an ex-husband and ex-wife. The courts have ruled that the civil union between Susan Freer (formerly Burns) and her lesbian partner does not equate to a marriage. Therefore, the judges have written, Freer’s three children cannot stay overnight with their mother and her partner. The child visitation agreement with her ex-husband forbids the children from visiting either parent while that parent is living with someone to whom he or she is not married or closely related. Only the Supreme Court of Georgia can address some of Freer’s weightier arguments, namely that under the state constitution’s right to privacy, she, not the state, is entitled to define her own family. But at least one high court observer says it’s unlikely the justices will weigh in, given that they refused to review the case and sent it to the appeals court last year. And supporters of Susan Freer say she could win with more practical arguments — such as the children’s best interest. “Sometimes the simplest answer is the best answer,” says Gregory R. Nevins of the Lambda Legal Defense and Education Foundation. It’s unclear whether Freer’s lesbianism prompted the 1995 divorce from her ex-husband, Darian Burns, who was awarded primary custody of the couple’s twin 7-year-old sons and their 4-year-old son. But the issue had surfaced by 1998, says one of Burns’ lawyers, Matthew D. Staver of Liberty Counsel, an Orlando, Fla.-based, conservative legal group. Staver says the consent decree came about after Burns said his ex-wife and her then-lover — not Susan Freer’s civil union partner — engaged in sexual activities in front of the children. Freer’s lawyer, Adrian F. Lanser of Cartersville, Ga., did not return two telephone calls seeking comment. Freer also could not be reached. When Burns refused to let the children visit again, his ex-wife sued, resulting in a consent agreement forbidding visitation by the children “with either party during any time where such party cohabits with or has overnight stays with any adult to which such party is not legally married or to whom party is not related within the second degree.” But, two months later, Freer and her partner received a civil union license in Vermont on July 2, 2000, Burns asked Floyd County, Ga., Superior Court Judge F. Larry Salmon to hold Freer in contempt for violating the consent agreement. Salmon last year ruled that Freer did not willfully violate the agreement, but her union did not constitute a marriage as set out in the agreement. Arguing that her right to privacy had been violated, Freer appealed to the Georgia Supreme Court, which in March sent the case to the Court of Appeals. The high court stated the case “requires merely the application of this court’s latest pronouncements on the breadth of the right to privacy,” referring to its 1998 decision in Powell v. State, 270 Ga. 327. In that case the court struck down Georgia’s law criminalizing noncommercial, private, consensual, adult sodomy. But the appeals court barely mentioned Powell. Judge M. Yvette Miller, writing for Presiding Judge Gary B. Andrews and Judge Frank M. Eldridge, wrote, “[I]f Susan wanted to ensure that her civil union would be recognized in the same manner as a marriage, she should have included language to that effect in the consent decree itself.” Burns v. Burns, No. A01A1827 (Ct. App. Ga. Jan. 23, 2002). Miller noted earlier that the Vermont law establishing civil unions for same-sex couples expressly distinguishes between marriage between a man and a woman and a civil union, which is applicable only to homosexual couples. “[E]ven if Vermont had purported to legalize same-sex marriages, such would not be recognized in Georgia,” Miller wrote, pointing to recent Georgia laws recognizing only heterosexual marriages. Any attempt to challenge the constitutionality of these laws must go to the Georgia high court, Miller added. The Atlanta Journal-Constitution quoted Freer as saying she would appeal, adding, “I am disappointed by the narrow view of the court.” Decatur, Ga., sole practitioner Christopher J. McFadden, a frequent advocate before Georgia’s appellate courts, says he doesn’t think the high court will grant certiorari in Burns because the appeals court decision stands on the reading of the consent agreement. That the high court sidestepped the matter last year, he added, “is at least a bad sign” for Freer. In an amicus brief, the American Civil Liberties Union argued that if civil unions were not equivalent to marriages, then they were at least second-degree relationships and therefore allowable for visitation under the agreement. Gerald R. Weber Jr. of the ACLU says a second-degree relationship is a nonmarital, not blood relationship created by law. “What the Georgia Court of Appeals has done is the equivalent … of not recognizing an adoption that occurred in another state,” says Weber. Staver, Burns’ lawyer, calls the ACLU argument “grasping at straws.” Ruling for Freer, he adds, “would be akin to recognizing a Vermont driver’s license as a pilot’s license — the two are not the same.” Yet another group in support of Freer, Boston-based Gay and Lesbian Advocates and Defenders, cited a 2001 Georgia high court ruling — Brandenburg v. Brandenburg, 274 Ga. 183 (2001) � that it said bars blanket restrictions on visitation in the presence of an unmarried partner. The Georgia Supreme Court has agreed to hear another case extending from Brandenburg. In Arnold v. Arnold, No. S02D0172 (Sup. Ct. Ga. Nov. 15, 2001), the justices will decide if a restriction on the custodial parent’s and the children’s relationship with a homosexual family friend is proper where there is no showing of harm resulting from the relationship.

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