Dissenting from the Supreme Court’s ruling in Lawrence v. Texas, which struck down Texas’s consensual sodomy law, Justice Antonin Scalia listed a catch-all inventory of purportedly immoral behaviors. Under the reasoning of the Court’s opinion, he warned, law prohibiting “bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity” would all be vulnerable to constitutional challenge.
Few have worried about the coming masturbation epidemic, but Scalia’s invocation of same-sex marriage has attracted considerable public notice. Commentators from all sides of the political spectrum have entered the debate, arguing over Lawrence’s implications for the institution of marriage. They have disagreed about whether laws prohibiting gay marriage have in fact been weakened and, if so, about whether this is for good or for bad.
While the debate over same-sex marriage is important, it may have obscured an issue whose consequences for gay families are even more tangible. For lesbians and gay men who have children, or who may wish to have them, it is Lawrence’s potential impact on child custody, visitation and adoption decisions that deserves attention.
A “Strong Presumption of Unfitness”
D.H., as she was referred to in her court papers, spent years in court battling with her ex-husband over custody of their three minor children. Based on undisputed evidence that the father had whipped and slapped the children, a lower court ruled in D.H.’s favor, finding that the “father’s verbal, emotional, and physical abuse can be considered family violence.”
Despite this evidence, the Supreme Court of Alabama granted the father’s appeal, giving him sole physical custody of the children. The Court, in an opinion issued last year, noted pointedly that the custody battle began “after the mother had begun a homosexual relationship.”
The Court did not, however, specifically base its ruling on the mother’s sexual orientation, arousing the ire at least one of its justices. Then-Chief Justice Roy Moore, lately of Ten Commandments fame, wrote separately to rectify the omission. “The homosexual conduct of a parent,” Moore declared, “creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others.”
It would be tempting to dismiss Moore as an extremist southern judge, were it not for the fact that his thinking is all too widely shared. In child custody, visitation, and adoption cases, courts from New Jersey to Florida have espoused similar views. Many have explicitly based their adverse rulings on the fact that the losing parent was gay.
“This Criminal Conduct”
Discrimination against gay parents comes in several forms. Some states bar gay parents from adopting; others discriminate against them in child custody or visitation disputes. But a common denominator of the stated justifications for such discrimination has been the existence of laws that criminalize sodomy.
Invoking such laws, courts and other child welfare authorities have deemed gay parents to be presumptive criminals, and thus unfit to raise children. The reasoning of this Georgia judge is typical:
Sodomy is against the criminal law of Georgia. . . Here, it is undisputed that the father engaged in pre-divorce sodomy, and currently is in a homosexual relationship. . . . Thus, the father has a demonstrable past and present history of engaging in conduct which is against the criminal laws of this state. In determining the father’s visitation rights, this criminal conduct . . . cannot simply be ignored by the courts.
The relevance of the Lawrence ruling to such cases should be obvious. By removing the crucial legal underpinning of the courts’ hostility toward gay parents, Lawrence makes such discrimination much harder to defend.
Parents Like Everyone Else
While Justices Kennedy and Scalia both alluded to Lawrence’s implications for the institution of marriage, none of the four justices writing opinions in Lawrence specifically mentioned its relevance to the issue of parental rights. Justice O’Connor did, however, set out an equal protection rationale for striking down the Texas law that recognized the law’s negative impact on areas beyond sex.
As O’Connor pointed out, “the effect of Texas’ sodomy law is not just limited to the threat of prosecution or consequence of conviction.” Instead, she noted, “Texas’ sodomy law brands all homosexuals as criminals, thereby making it more difficult for homosexuals to be treated in the same manner as everyone else.”
With or without the Supreme Court’s approval, gay adults would have continued to have sex. But among Lawrence’s welcome implications is that, as parents, lesbians and gay men should be treated like everyone else.
JOANNE MARINER is a human rights attorney who has worked in Latin America for nearly a decade. A different version of this article originally ran on Findlaw’s Writ. She can be reached at: email@example.com