- LEO TOLSTOI

Anna Karenina

But, with all due respect to Count Leo, the law must approach all of those unhappy families in the same way.

That's why Utah Judge Timothy Hanson was right when he decided that a case involving the child of two women - joined in a legal civil union in Vermont and since put asunder - was not about gay rights, gay marriage or any of that stuff that divides red states from blue states.

It's about the issues that divide two human beings, both going through particularly emotional times, and about the child that they worked together to bring into the world.

We do not offer an opinion as to whether the child born to one of the women will or will not be better off with a legal order granting the other woman continued visitation rights, rights the birth mother wanted to end.

But it seems obvious that the issue before the 3rd District judge is difficult enough without cluttering it all up with the gay marriage debate that Utah has had, and will continue to have, over the passage of Amendment 3.

That amendment not only bans same-sex marriage in Utah, but, regrettably, anything else seeking to pass as marriage. But Amendment 3 did not, and it cannot, ban procreation. Thus we can only hope that custody cases judged in the future, after the Amendment officially becomes part of the Utah Constitution Jan. 1, will ignore it as freely as Judge Hanson did in this case.

The real issues in this case are the same as those argued in innumerable heterosexual custody cases, cases no less painful to the participants for their apparent normality.

Two people made a life and a family together. They had a child, created with the help of a sperm donor selected by both partners. Then the family fell apart. Former lovers became enemies. A newfound difference of religion between the former partners is involved, as well as regretted sexual conduct, issues also common in boy-girl separation and custody disputes.

Custody cases will, tragically, appear before Utah judges as long as there is a Utah and there are judges. Some will involve homosexual couples. Some will involve heterosexual couples who were never altogether married, at least on paper. Many of those involved may seek to use Amendment 3 as yet another hurtful weapon in a battle that already has too many, seeking to pretend a relationship that created a new human being somehow doesn't count due to this unfortunate legalism.

But the child will always count. And then Amendment 3 will either not matter, or be shown to be even more damaging than we feared.