FacebookTwitterRedditEmail

Married with Children

 

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: mariner@counterpunch.org

 

More articles by:

JOANNE MARINER is a human rights lawyer living in New York and Paris.

Weekend Edition
March 22, 2019
Friday - Sunday
Henry Giroux
The Ghost of Fascism in the Post-Truth Era
Gabriel Rockhill
Spectacular Violence as a Weapon of War Against the Yellow Vests
H. Bruce Franklin
Trump vs. McCain: an American Horror Story
Paul Street
A Pox on the Houses of Trump and McCain, Huxleyan Media, and the Myth of “The Vietnam War”
Andrew Levine
Why Not Impeach?
Bruce E. Levine
Right-Wing Psychiatry, Love-Me Liberals and the Anti-Authoritarian Left
Jeffrey St. Clair
Roaming Charges: Darn That (American) Dream
Charles Pierson
Rick Perry, the Saudis and a Dangerous Nuclear Deal
Moshe Adler
American Workers Should Want to Transfer Technology to China
David Rosen
Trafficking or Commercial Sex? What Recent Exposés Reveal
Nick Pemberton
The Real Parallels Between Donald Trump and George Orwell
Binoy Kampmark
Reading Manifestos: Restricting Brenton Tarrant’s The Great Replacement
Brian Cloughley
NATO’s Expensive Anniversaries
Ron Jacobs
Donald Cox: Tale of a Panther
Joseph Grosso
New York’s Hudson Yards: The Revanchist City Lives On
REZA FIYOUZAT
Is It Really So Shocking?
Bob Lord
There’s Plenty of Wealth to Go Around, But It Doesn’t
John W. Whitehead
The Growing Epidemic of Cops Shooting Family Dogs
Jeff Cohen
Let’s Not Restore or Mythologize Obama 
Christy Rodgers
Achieving Escape Velocity
Monika Zgustova
The Masculinity of the Future
Jessicah Pierre
The Real College Admissions Scandal
Peter Mayo
US Higher Education Influence Takes a Different Turn
Martha Rosenberg
New Study Confirms That Eggs are a Stroke in a Shell
Ted Rall
The Greatest Projects I Never Mad
George Wuerthner
Saving the Big Wild: Why Aren’t More Conservationists Supporting NREPA?
Norman Solomon
Reinventing Beto: How a GOP Accessory Became a Top Democratic Contender for President
Ralph Nader
Greedy Boeing’s Avoidable Design and Software Time Bombs
Tracey L. Rogers
White Supremacy is a Global Threat
Nyla Ali Khan
Intersectionalities of Gender and Politics in Indian-Administered Kashmir
Karen J. Greenberg
Citizenship in the Age of Trump: Death by a Thousand Cuts
Jill Richardson
Getting It Right on What Stuff Costs
Matthew Stevenson
Pacific Odyssey: Puddle Jumping in New Britain
Matt Johnson
The Rich Are No Smarter Than You
Julian Vigo
College Scams and the Ills of Capitalist-Driven Education
Brian Wakamo
It’s March Madness, Unionize the NCAA!
Beth Porter
Paper Receipts Could be the Next Plastic Straws
Christopher Brauchli
Eric the Heartbroken
Louis Proyect
Rebuilding a Revolutionary Left in the USA
Sarah Piepenburg
Small Businesses Like Mine Need Paid Family and Medical Leave
Robert Koehler
Putting Our Better Angels to Work
Peter A. Coclanis
The Gray Lady is Increasingly Tone-Deaf
David Yearsley
Bach-A-Doodle-Doo
Elliot Sperber
Aunt Anna’s Antenna
March 21, 2019
Daniel Warner
And Now Algeria
FacebookTwitterRedditEmail