Minnesota Lawyer
Every few weeks, Sharon Kowalski comes home for “spa day.”
Kowalski, 61, departs the adult foster program where she now lives, stops at a Fantastic Sams for a haircut, and returns home to her family pampering that includes an hour-long-professional massage and a whirlpool bath.
Spa day is easiest inside the family’s rambler at the water’s edge in Clearwater, a central Minnesota, Mississippi River town. It was built in 1989 with beyond-its-years accessibility accommodations for Kowalski, a former star athlete who was hit by a drunk driver in November 1983 when she was just 27.
Kowalski suffered severe brain injuries in the automobile accident, which confined her to a wheelchair, impaired her ability to speak, and fractured her short-term memory.
Thirty-five years later, Kowalski’s spa-day homecomings are as remarkable as they are not.
To an able-bodied observer, it is remarkable to see the two gray-haired women, who make spa day possible, maneuver a hospital-grade lift with the deft and ease of a surgeon’s hand—and to see Kowalski, safely suspended five feet in the air on her way from a wheelchair to her bed some six feet away.
But this is all unremarkable for those two women, Kowalski’s family—Karen Thompson, 71, Sharon’s legal guardian and partner of four years at the time of the 1983 accident, and Patty Bresser, 62, Thompson’s now-wife (though the couple shy away from the conventions of marriage because they don’t fit their definition of “family”).
This is everyday life for their family of three.
Until a few years ago, Kowalski lived at home full time. Thompson and Bresser employed help from a personal care assistant during the day, but Kowalski’s care fell to them alone every night and all weekend. Kowalski’s fragile condition, for example, requires a tube feeding every two hours. At night, she needs to be turned every two-and-a-half hours, ideally without waking her.
And so went life for about 25 years, until Thompson and Bresser’s own changing abilities and ages dictated additional care for Kowalski.
The truly remarkable thing is that they got to undertake this literal labor of love and commitment at all.
To understand its remarkability, one needs to go back nearly 30 years when a new refrain in a court opinion, that same-sex relationships “ought to be accorded respect,” was a landmark notion.
National Free Sharon Kowalski Day
This Tuesday marks the 30th anniversary of the 21-city, “National Free Sharon Kowalski Day,” when supporters took to the streets advocating for Thompson’s right to make decisions for Kowalski.
That day became a flashpoint in the gay rights movement, filled with marches and vigils. In this current era of rallies and hashtags on matters from family separations at the southern border to #BlackLivesMatter, the Kowalski case offers a case study in the lasting legal legacy of boisterous movements.
At the time of the accident, Kowalski and Thompson had lived together four years in St. Cloud, had exchanged rings, and named one another the beneficiaries of their life insurance polices, said M. Sue Wilson, the family law attorney who represented Thompson during the multiyear fight to gain guardianship of Kowalski.
During the months following the accident, Thompson said she was able to begin helping with Kowalski’s rehabilitation, even seeing progress like signs of balance and communication using a rudimentary alphabet board to which Kowalski would point.
Meanwhile, because of Kowalski’s diminished mental capacity, the courts granted legal guardianship to her father, Donald Kowalski. But tensions grew out of disagreements over Kowalski’s care, coming to a crescendo, Wilson said, when the parents learned of the true extent of their daughter’s relationship with Thompson.
The Kowalski family convinced the courts to terminate Karen’s visitation rights in July of 1985. And a movement was born.
“This became a real cause célèbre,” said Wilson, who was hesitant at first to use a nationwide advocacy campaign and the media. She said reporters asked questions about her “crazy theory” that a lesbian partner should gain guardianship at the expense of a parent.
“I would just say, ‘well this is her life,’” Wilson said this summer at her office in Minnetonka. “’She chose it and she gets to have it.’”
Wilson and Thompson fought years to give Sharon that life.
Bigotry, physical threats, substandard care
Wilson joined the guardianship case already in progress in 1985.
Thompson accompanied Wilson at myriad hearings from the Iron Range to Hennepin County and on two unsuccessful trips to the Court of Appeals.
“I thought I’d listened objectively,” Thompson said of some of the proceedings—to contest the guardianship of Donald Kowalski, to beg for visitation rights, to plead for reassessment of Kowalski’s cognitive abilities. “I thought, ‘this time the outcome will be different.’ And it wasn’t. It was just staggering.”
Thompson said one district court judge opined in open court, “You know it’s a sin, don’t you?” after agreeing with opposing counsel, who was waving a Bible during his oral argument.
At another hearing, Thompson said Kowalski’s brother leapt across a row of chairs and grabbed her by the neck. Wilson said a voice in a crowd of a 100 detractors shouted, “dyke.”
“That’s what homophobia looks like and it’s ugly,” Wilson said. “It’s really ugly because it denies the humanity of people.”
Wilson characterized early court decisions and decorum as bigoted and paternalistic. The courts were overly deferential to Kowalski’s father despite mounting evidence that her care was substandard, Wilson said, and ultimately, her condition was worsening.
Wilson won by starting over
After the two losses at the Court of Appeals and failing to get the Minnesota Supreme Court to review the guardianship case, Wilson said she went back to the statute, which has “huge protections for the ward,” to figure out how she could craft a record that could withstand district court “bigotry” and gain appellate review for clear error.
Unlike most civil proceedings, Wilson said Minnesota’s guardianship statute then (and now) allowed multiple bites at the apple. A ward’s “preference should determine the guardian,” Wilson said, and that preference along with a ward’s needs and a proposed guardian’s abilities must be reassessed upon an interested person’s motion.
Wilson and Thompson got moving, winning court orders for visitation, then for expert reassessments of Sharon’s mental abilities, then for better care.
The last stumbling block in the battle came when Donald Kowalski relinquished guardianship of his daughter due to his own health issues. He died in 2005.
Thompson petitioned the court for guardianship again. Wilson presented evidence she spent years assembling, like expert testimony that Kowalski had a mental capacity far beyond initial assessment and the ability to express a preference.
And quite simply, Wilson said Kowalski had told experts that she wanted to go home with Thompson.
Yet again, in April 1991, a St. Louis County District Court judge awarded guardianship to a Kowalski family friend who had not even petitioned for the job based on, Wilson said, hearsay evidence that Kowalski’s parents would not visit her if Thompson were awarded guardianship.
“This is the stark unadulterated, undeniable truth,” Wilson said recently, that final defeat, in light of the record she crafted in front of the trial judge, still palpable in her voice. “Are you going to believe it? Or are you going to go back to being a bigot?”
But on one final trip to the Court of Appeals, Wilson and Thompson created a landmark moment, both for a would-be family of three and the rest of the country.
According ‘respect’ for the first time
Wilson said she likes to think that the Kowalski case is a defining moment in the post-Stonewall LGBT rights movement. She points to the waning sentences of Judge Jack Davies’ December 1991 Court of Appeals opinion ordering that Karen Thompson be appointed Sharon Kowalski’s legal guardian because of the lower court’s clear error in evaluating the evidence.
“This choice is further supported by the fact that Thompson and Sharon are a family of affinity, which ought to be accorded respect,” Davies wrote for the court.
For his part Davies, who retired from the Court of Appeals in 2000, keeps a fair jurist’s arms-length from the societal implications of the opinions that came out of his court of errors.
“We were focused on what was appropriate in her case and not taking into account national implications whatsoever,” Davies said by phone last week from his home in the Loring Park neighborhood of Minneapolis.
In fact, Davies said he had no idea of the Kowalski case’s lasting national import until this June, when he and his wife Patricia saw a display devoted to the case during a stroll through the annual pride festival near his home.
“If it had precedential rewards for a part of society that needed it, then we are delighted,” Davies said. “But that was not the intent. It’s simply a byproduct of deciding cases on the appellate level.”
Call it evidence that Wilson built the right record for a case winnable on the merits alone all those years ago (read the opinion at 478 N.W.2d 790).
The legacies of the case
By the time Kowalski finally came home in 1992, Thompson had become a renowned national advocate for LGBT, women’s, and disability rights. And she was battle-worn.
“I went to bed many a night hoping I wouldn’t wake up the next day,” Thompson said.
After years of court-ordered estrangement from Thompson, and with a psychologist’s help, Kowalski was asked, “do you know why Karen isn’t here?” Thompson recalled.
Using the old alphabet board Thompson had put together shortly after the accident, “Sharon slowly spelled out, ‘I thought she left me,’” Thompson said. “That was just crushing to know, that I’m out here beating the bushes doing everything that I could do —and I had support from all over the country.”
Thompson said it gave her the will to live, knowing that Kowalski survived isolated in a nursing home all those years. And it gave her the will to move forward in a healthy way.
On the national speaker circuit, Thompson reconnected with Patty Bresser who had left Minnesota and Karen and Sharon’s extended friend circle in the early ‘80s. In fact, a story that still gets an audible chuckle out of Sharon today is the fact that Patty is the only friend she would let drive her motorcycle years ago.
Thompson and Bresser fell in love, Thompson concluding with her therapist’s help that it was what Sharon would want for her.
“That was one of the hardest decisions I ever made,” Thompson said, sitting next to Kowalski, giving her a tube feeding with Bresser contently listening across the family’s kitchen table. “I knew making that decision, I would never quit trying to break the case open. I’d never quit fighting for Sharon’s right to come home to live if that’s what Sharon wanted.”
Bresser said she knew from day one that Thompson and Kowalski were a “package deal.” She moved back to Minnesota in the final years of the legal fight.
“We decided that we were going to do this,” Bresser said. “We were really going to work in earnest to get Sharon home.”
They did. Advocating for her care and rehabilitation, Thompson and Bresser witnessed Kowalski stand for the first time using a special frame 15 years after the accident. At 23 years, Sharon spoke for the first time and refused to use her speech synthesizer ever again.
Their wider advocacy has not stopped, either. Thompson and Bresser, both retired Saint Cloud State University professors, continue to educate anyone who will listen about advanced care planning and about accessibility for the disabled.
Thompson relishes a legacy of coalition building, recalling difficulties in early years getting disability rights groups to buy into a lesbian’s plight: “I told them you can’t afford not to get involved in this case because what comes down is going to affect disability rights,” she said.
But perhaps the greatest legacy of all is showing, not telling, anyone who might stare, glare, or glance what a loving family can look like.
“We just identify ourselves as a family and let people process that,” Bresser said said.
What do people see? The ties that bind—the ones Bruce Springsteen wrote you can’t forsake, that you can’t break.
This is the ultimate legacy of Sharon Kowalski’s case, a once-cause célèbre not as much about that fateful 1992 homecoming, but about where one can go when she gets there—with or without limitations.
“Sharon loves to go on vacation,” Karen said, beaming. “She loves to travel.”
Travel she has. And travel she will.
This Saturday Kowalski, Thompson and Bresser will hit the road for Branson, Missouri, to take in a few shows and to celebrate Sharon’s 62nd birthday, which also happens to be this week.
Ben Kwan is a former television reporter and anchor. He practices at HallerKwan in Minneapolis.
