Married
with Children?
The Impact of Lawrence v. Texas on Child Custody, Visitation, and
Adoption
FindLaw.com,
September 15, 2003
http://writ.news.findlaw.com/mariner/20030915.html
By Joanne Mariner
In dissenting from the Supreme Court’s ruling in Lawrence
v. Texas, the landmark case in which Texas’s consensual sodomy law
was struck down, 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.
While few have worried about the coming masturbation epidemic, Scalia’s
invocation of same-sex marriage has attracted considerable public debate.
Commentators from all sides of the political spectrum have chimed in, arguing
over Lawrence’s potential impact on 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.
The debate over same-sex marriage is important, but 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 wish to have them, the potential impact
of Lawrence on child custody, visitation and adoption decisions is
profound.
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 had 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 last year, giving him sole physical custody of the children. The Court,
in its written opinion, 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 ban
gay parents from adopting; others discriminate against gay parents in child
custody disputes, or in cases involving child visitation. But a common
denominator of the justifications given 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 court, which ruled against a gay parent in 1996, 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 a crucial legal basis for the courts’ hostility toward
gay parents, Lawrence makes such discrimination much harder to justify.
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 status of gay parents. 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, consenting gay adults would
have continued to have sex. But among the welcome implications of Lawrence is
the idea that gay parents should be treated in the same manner as everyone
else.
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