Naeger, Jennifer


Sodomy laws, which authorize the government to dictate what behavior is appropriate in the bedroom, have historically been extremely controversial. These laws criminalize either same-sex acts1 or certain gender-neutral, non-procreative sexual conduct.2 For the past third of a century, however, sodomy laws have rarely been enforced.3 Instead, they were used mainly as legal justification to discriminate against homosexuality.4 Recently, in Lawrence v. Texas,5 the Supreme Court of the United States, by a 6-3 vote,6 held that sodomy laws were an unconstitutional violation of privacy and due process guarantees.7 This landmark decision not only gives homosexuals the right to enter into sexual relationships in the privacy of the home “and still retain their dignity as free persons,”8 but also provides them with legal entitlement to equal respect and equal treatment in civil litigation in areas where they have been disadvantaged the most9-namely employment,10 housing,11 and parenthood12-and puts homosexuals in a better position in court to fight for equal treatment in the military.13

This Note will analyze how the Lawrence decision and the repeal of sodomy laws will affect one particular area of civil litigation-child custody disputes involving gay and lesbian parents. This Note focuses entirely on natural parents. cases between a parent and a non-parent, termination of parental rights, adoption, and foster parents are beyond the scope of this piece. Part I addresses the origin of sodomy through the Court’s decision in Bowers v. Hardwick,u which called attention to homosexual discrimination, and the spin-off effects of the decision. Part II discusses the facts and holding of Lawrence v. Texas and the grounds on which the Court came to its ruling. Part III provides background information on how family courts resolve child custody disputes and the rationale employed to justify the denial of custody or restriction of visitation rights of gay and lesbian parents. Finally, Part IV analyzes how the Lawrence decision and the repeal of sodomy laws will change this custody discrimination.


A. The Development and Status of Sodomy Laws Before Bowers

Delineating the ebb and flow of sodomy laws throughout history is an elaborate task beyond the scope of this Note,15 but it is important to identify a few notable ripples in order to understand the state of the law when the Supreme Court came face to face with Bowers. The aversion to sodomy is so deeply rooted that it is necessary to trace its origin back to biblical times. The term “sodomy” comes from the biblical city of Sodom, which God destroyed because of its corrupt and immoral customs.16 During the Middle Ages, sodomy was considered a religious offense regulated by ecclesiastical courts.17 The crime consisted of “a range of nonmarital, nonprocreative sexual practices. Nonprocreation was the central offense and the core of the crime.”18

The influence of Christianity made sodomy a secular crime.19 As the Colonial period ended in the eighteenth century, the United States came into existence and adopted, along with the rest of the English common law, the offense of sodomy.20 These laws criminalized non-procreative, heterosexual intimacy-not homosexual conduct in particular.21 As the nineteenth century unfolded, almost every state had adopted laws prohibiting sodomy.22 Society’s focus, however, gradually shifted away from governmental control and left the regulation of private, sexual conduct “largely to the family.”23

Although sodomy laws remained on the books in most states, the government stayed at arms length with respect to their regulation.24 In 1955, the American Law Institute (ALI) transformed the practice of non-enforcement into an official acknowledgement when it decided that the Model Penal Code would not include sodomy laws.25 The ALI started a trend of decriminalization26 that began in 1961 with the state of Illinois.27 When the Bowers case was brought before the Supreme Court in 1986, twenty-six state legislatures had abolished their sodomy laws, either by legislative repeal or judicial intervention.28

The striking down of sodomy laws was consistent with the open-minded attitudes of popular culture, which favored a more liberated outlook on sexual behavior that diverged from the strict principles of the past.29 This sexual freedom took the focus off of heterosexual intimacy, but because prejudice against homosexuals continued to exist and the gay rights movement made homosexual culture more visible,30 the new outlook on sexuality indirectly strengthened the link between sodomy laws and homosexuals. Concerned legislatures reacted by amending the laws to apply only to same-sex intimacy and interpreted gender-neutral statutes as if they applied solely to gays and lesbians.31 The Supreme Court’s decision in Bowers v. Hardwick emphasized the negative sentiment toward homosexuality32 and illustrated just how sodomy laws served as a means of legal discrimination.33

B. Bowers v. Hardwick: A Brief Synopsis

Although Bowers was not the first constitutional challenge to sodomy laws to reach the Supreme Court,34 it did create the most fervent backlash from gay rights activists, and with good reason.35 In August 1982, an Atlanta police officer arrived at Michael Hardwick’s house “to confront him with an unpaid ticket for public drunkenness” and his subsequent failure to appear in court.36 A half-asleep houseguest responded to the officer’s knock and directed him to Hardwick’s bedroom.37 Through a partially open door, the officer either witnessed or heard Hardwick and his companion engaging in consensual sex acts.38 The officer barged into the bedroom and arrested both men for violating Georgia’s sodomy law.39 Hardwick challenged the constitutionality of the statute, claiming that it violated his due process right to privacy.40 he based his argument on a line of privacy cases decided by the Supreme Court, which recognized that consenting adults have the fundamental right to form intimate personal relationships within the protective shelter of the home-a right which cannot be hindered by the government without a compelling justification.41 After much debate among the lower courts,42 the Supreme Court granted certiorari.43

Narrowing the issue exclusively to whether the Constitution conferred to homosexuals a fundamental right to engage in consensual sodomy, the Court held by a 5-4 vote that the constitutional right to privacy does not extend to homosexual intimacy.44 The “protection of public morality”45 provided a legitimate state interest to prohibit such a crime; therefore, Georgia needed only a rational basis for sustaining its statute.46 In reaching this conclusion, the Court focused a disproportionate amount of its opinion on the historical analysis of the “illegality of gay sex.”47 What really stood out, however, was the fact that the Court took a sodomy statute that did not explicitly refer to same-sex intimacy and, nevertheless, selectively applied it to homosexuals.48 The majority’s “utter contempt” for homosexual conduct was apparent when the Court stated that “it was ‘facetious’ to argue the fundamental right to privacy protected gay people.”49

The Bowers dissent stressed several key factors in urging the unconstitutionality of Georgia’s sodomy statute, concepts which would later be endorsed by the majority in Lawrence v. Texas. First, the focus should be on ” ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, ‘the right to be let alone.’ “50 This issue is much broader than whether homosexuals have a fundamental right to engage in sodomy. second, morality should not be the decisive factor in upholding the constitutionality of a statute, especially “if the grounds upon which [the law] was laid down have vanished long since.”51 The dissent noted that the majority’s “obsessive focus on homosexual activity” was not warranted because Georgia’s sodomy statute was gender-neutral, thereby also criminalizing heterosexual sodomy.52 Finally, the dissent argued that the Court had already “recognized a privacy interest with reference to certain decisions that are properly for the individual to make,”53 and that this protection extends to the confines of the home.54 The petitioners, therefore, should have the right to decide how to conduct personal relationships without governmental intrusion.

C. The Aftermath of Bowers

Discrimination against homosexuals existed before Bowers,55 but by upholding the constitutionality of sodomy laws, the Court created spin-off effects far beyond the consequences of prosecution.56 First, the Bowers decision indirectly encouraged state governments to “create a criminal class” out of homosexuals,57 regardless of whether they actually partook in such illegal conduct.58 The ruling reaffirmed the judiciary’s right to uphold anti-gay sentiment in areas of civil litigation and provided opponents of civil rights with ammunition that did not sound blatantly prejudiced.59 For example, courts continued to justify discrimination against gay and lesbian employees and job applicants,60 to separate children from their gay and lesbian parents by denying custody or restricting visitation,61 to uphold the removal of competent homosexuals from military service,62 and to suppress gay people from publicly exercising their First Amendment rights.63 In addition, the continued existence of sodomy laws was an unremitting “assault” on the dignity of homosexuals,64 and prohibiting sexual intimacy, which is often important to one’s mental health and happiness, may very well have caused psychological harm to gays and lesbians.65

Although Bowers created a huge hurdle for gay rights activists, not all of its repercussions were bad. After pushing state legislatures and clogging state courts with arguments against sodomy laws, activists revived the earlier trend-repeal and invalidation.66 When Lawrence reached the Supreme Court, half of the states that had sodomy statutes when Bowers was decided no longer had such laws,67 including Georgia itself.68

Additionally, the Court decided two principal cases after Bowers that indirectly questioned its validity. In Planned Parenthood of Southeastern Pennsylvania v. casey,6s the Court stressed the expansiveness of the liberty protected by the Due Process Clause, which includes “personal decisions relating to marriage, procreation, contraception, family relationships, [parenthood], and education.”70 The second landmark decision was Romer v. Evans,11 which invalidated a Colorado constitutional amendment that barred equal rights laws for homosexuals.72 The Court acknowledged that gays and lesbians were entitled to equal protection,73 and stated that “if a law neither burdens a fundamental right nor targets a suspect class,” it would be upheld “so long as it bears a rational relation to some legitimate end.”74 After concluding that the sole purpose of the Colorado amendment was to harm homosexuals, the Court declared it unconstitutional.75 The Romer decision, however, can be seen as consistent with Bowers. That is, the Court upheld Georgia’s sodomy statute as constitutional because homosexuals did not have a fundamental right to engage in sodomy, and protection against the immorality of homosexual conduct provided a legitimate reason for the statute.76

The variability of case law and the gradual approval of homosexuality in American society enabled Lawrence v. Texas, another challenge to the constitutionality of sodomy laws, to find itself before a receptive Supreme Court. The Court, in turn, provided gays and lesbians with its single most influential decision to date.


Responding to a reported weapons disturbance, officers of the Harris County Police Department in Houston, Texas entered the apartment of John Lawrence, where they observed him and another male, Tyron Garner, engaging in sexual acts.77 Both men were arrested, jailed overnight, charged, and convicted before a justice of the Peace78 for violating Texas Penal Code section 21.06, which criminalized “deviate sexual intercourse” for same-sex couples but not for opposite-sex couples.79

Both petitioners felt that section 21.06 violated their federal constitutional guarantees of privacy and equal protection under the Fourteenth Amendment80 and like provisions of the Texas Constitution;81 therefore, they exercised their right to a trial de novo in Harris County Criminal Court.82 Petitioners’ constitutional arguments were rejected, so they took the case to the Texas Court of Appeals, which affirmed the convictions.83 The court of appeals rationalized its decision on principles of morality, holding that Texas could treat same-sex couples differently from opposite-sex couples in order to express its disapproval of homosexuality.84 The United States Supreme Court granted certiorari to address the constitutionality of the Texas sodomy statute, and in doing so, reconsidered its holding in Bowers.85

First, the Court discussed the zone of liberty protected under the Due Process Clause of the Constitution and whether private, sexual intimacy between consenting adults could be carved out of that zone.86 Because there has never been a specific formula defining the substantive reach of the Due Process Clause,87 the Court used its past decisions and their underlying rationales as signposts.88 These cases recognized a fundamental right to develop personal relationships, as well as the right to engage in private, sexual intimacy, regardless of marriage or procreation.89 The Texas statute’s only purpose was to prohibit a sexual act that fell “within the liberty of persons to choose without being punished as criminals.”90 The majority noted that the issue in Bowers, whether homosexuals had the right to partake of certain sexual activity, was simply too narrow.91 Having “misapprehended the claim of liberty . . . presented to it,” the Bowers Court trivialized the “far-reaching consequences” of criminal sodomy laws.92

Next, the Court addressed the history of laws banning sodomy in America, and after a thorough review, concluded that such statutes were not distinctly directed at homosexual conduct until quite recently.93 Moreover, they were rarely enforced against consenting adults acting in private.94 The Bowers Court based its ruling on the notion that “[proscriptions against [homosexual] conduct have ancient roots,”95 thus relying almost entirely on a flawed reconstruction of American history.96

Although ethical and moral beliefs provide a solid foundation on which to lead one’s life, the Lawrence Court stated that such principles are an insufficient reason to uphold a criminal law.97 The Court’s “obligation is to define the liberty of all, not to mandate [its] own moral code.”98 Criminal offenses have a negative effect on the dignity of the individual charged, and convictions carry “collateral consequences” that invite discrimination against homosexuals.99

In reconsidering Bowers, the Court also examined the recent trend in case law.100 Specifically, it considered Planned Parenthood of Southeastern Pennsylvania v. casey, and Romer v. Evans, which expanded the fundamental rights to privacy.101 Finally, the Court noted that international forums, including the European Court of Human Rights, afford homosexual adults the right to engage in intimate, sexual conduct.102

After careful analysis, the Court concluded that petitioners’ “right to liberty under the Due Process Clause gives them the full right to engage in [private, sexual] conduct without intervention of the government …. The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.”103 The majority could have chosen simply to distinguish Bowers by declaring the Texas sodomy statute, which only criminalized homosexual sodomy, unconstitutional on equal protection grounds.104 Instead, the Court completely overruled it by holding unconstitutional on substantive due process grounds all statutes that interfere with an adult’s right to engage in private, consensual sexual conduct.105 The Lawrence decision undermines every ruling that has relied on Bowers. After Lawrence, every sodomy statute that pertains to private, sexual conduct between consenting adults is now unconstitutional.


A. Background in Family Law

The Supreme Court has deemed the right to have and raise children a fundamental liberty,106 deserving protection against all but compelling state interests.107 This level of protection, however, is jeopardized when a family is torn apart by divorce or legal separation and parents find it impossible to agree on child custody arrangements.108 As a result, courts make the initial allocation with respect to marriage dissolution and the non-custodial parent’s visitation rights.109 Statutes110 and case law111 require courts to determine child care disputes based on the best interests of the child, which is determined by weighing the positive and negative characteristics of one party against those of all opposing parties and placing the child with the one that is best able to serve the child’s needs.112 At a later point, one parent may petition for a modification of existing custody by showing that the child’s current living conditions endanger his or her welfare and that a change in custody would benefit the child.113

Unfortunately, the “best interests of the child” standard is vaguely defined.114 judges have broad discretionary power to protect the children brought before them and can deem virtually any factor relevant to the child’s welfare.115 This flexibility may help to avoid an arbitrary judgment that clashes with a child’s essential needs, but it invites discrimination that may ultimately result in the child’s best interests being sacrificed and allows judges to be swayed by their own biases.116

B. Current Law Applied to Gay and Lesbian Parents

Because many gay men and lesbians have children from heterosexual relationships or marriage, they also face potential custody litigation.117 In a dispute where one of the contestants is homosexual, the court, depending on the state of jurisdiction, may interpret the applicable statute to “permit consideration of the parent’s sexual orientation.”118 Generally, this is done only if the homosexual parent is involved in a same-sex relationship.119 Courts apply one of three standards when determining whether homosexuality harms or will likely harm the child: the “nexus test,” the “permissive determinative inference” approach, or the “per se” rule.120

A majority of states have adopted the “nexus test.”121 Courts may consider a parent’s sexual orientation as a factor, but it cannot be the sole basis for denying custody without evidence from the contesting parent122 that the gay or lesbian parent’s conduct has harmed the child, or in other words, that there is a nexus between homosexuality and parental unfitness.123 Under the nexus test, harm cannot be presumed, but must be determined on a case -by-case basis.124 Courts, therefore, hold that the state cannot separate a parent and a child “merely because that parent’s lifestyle is not within the societal mainstream.”125

For example, in S.N.E. v. R.L.B.,126 the Alaska Supreme Court applied the nexus test in an action brought by the father, who sought a change of custody due to the mother’s involvement in a homosexual relationship.127 The father claimed that the mother was emotionally unstable and that he was the child’s primary parent.128 The trial court granted custody to the father,129 but the supreme court reversed, holding that “(c]onsideration of a parent’s conduct is appropriate only when the evidence supports a finding that a parent’s conduct has or reasonably will have an adverse impact on the child and his best interests.”130 In addition, the court refused to consider the social stigma attached to a parent’s status as a homosexual, finding it relevant only upon evidence of detrimental impact.131

The “permissive determinative inference” approach is a rebuttable presumption of unfitness, which explicitly places the burden on the homosexual parent to prove that his or her sexual orientation will not harm the child.132 If no evidence is offered, “the permissible inference is one that, standing alone, can justify the court’s decision to deny custody” to the homosexual parent and grant it to the avowedly heterosexual parent.133

In Ex parte J.M.F.,134 the Alabama Supreme Court rejected the notion that there must be evidence of a detrimental impact on the child in order to support a change of custody.135 The father, who had recently remarried, sought to gain custody of his child from the openly lesbian mother.136 The supreme court held that the establishment of marriage was the societal and moral norm-thus it was in the child’s best interests for the heterosexual father to gain custody.137 Although the court did not explicitly declare the mother’s homosexual conduct to be presumptively detrimental to the child,138 it asserted that “[wjhile the evidence shows that the mother loves the child and has provided her with good care, it also shows that she has chosen to expose the child continuously to a lifestyle that is ‘neither legal in this state, nor moral in the eyes of most of its citizens.’ “139

The last standard employed by state courts is the “per se” rule, which applies an irrebuttable presumption against grants of custody to parents involved in a homosexual relationship.140 Where an adequate heterosexual parent or relative is available, courts assume that awarding custody to gay and lesbian parents is never in the best interests of the child.141

Bottoms v. Bottoms142 is the most highly publicized case utilizing this standard. After the mother admitted being involved in a homosexual relationship, the Virginia trial court awarded custody to the grandmother, ruling that the lesbian mother’s “illegal” and “immoral” conduct rendered her an unfit parent as a matter of law.143 The court of appeals reversed, concluding that “the evidence fails to prove [that the mother] abused or neglected her son, that her lesbian relationship . . . has or will have a deleterious effect on her son, or that she is an unfit parent.”144 The grandmother appealed to the Virginia Supreme Court, which overturned the appeals court ruling and reinstated the trial court’s order granting custody to the grandmother.145 In reaching its decision, the supreme court expressed concern about the long-term consequences of being raised by lesbians, namely the social condemnation that may be imposed on the child.146 This case illustrates a major flaw of the per se rule: that a loving homosexual parent can lose custody of his or her child, regardless of the lack of negative influence. Thus, this rule destroys precisely what it seeks to protect-the best interests of the child.

Courts that have religiously applied the per se rule in the past seem to be treating homosexuality with slightly more tolerance. Recently, in J.A.D. v. F.J.D.,147 the Supreme Court of Missouri reconsidered the notion that a parent who engages in same-sex intimacy of any sort is automatically unfit.148 The court held that a parent’s homosexuality was still presumed to have a detrimental impact on the child’s welfare but could no longer be considered “ipso facto” parental unfitness.”19

In addition to custody determinations, the “best interests of the child” standard is also applied to establish visitation rights of gay and lesbian parents.150 Although no court has completely denied visitation rights based on a parent’s sexual orientation, some courts have restricted such privileges to protect children from what they presume to be harmful conduct.151 These restrictions have included prohibiting the child from overnight visits, taking the child to the home that the homosexual parent shares with his or her same-sex partner, taking the child to homosexual gatherings, and being in the presence of the samesex companion.152 Other courts, however, have declined to limit visitation rights without evidence of harm justifying those restrictions.153

C. Sodomy Laws and Other Rationales Behind Custody and Visitation Discrimination

Courts that restrict visitation rights or deny custody to gay and lesbian parents under the permissive determinative inference approach or per se rule consistently cite a combination of five factors in support of their decisions.154 First, in recognizing the intensity of prejudice against homosexuals, courts express concern about children being harassed or teased by their peers.155 Second, courts fear that a child, through extended exposure to the homosexual lifestyle, will develop a same-sex orientation.156 Third, based on the notion that same-sex intimacy demonstrates immorality, courts believe that living with a homosexual parent may have an adverse affect on the child’s moral development.157 Fourth, courts fear that a child may be sexually molested by the parent or the parent’s friends.158 Finally, courts frequently cite state sodomy laws as a factor.159

The most powerful and seemingly least prejudicial reason for denying custody and restricting visitation rights of gay and lesbian parents is state sodomy laws, because other factors simply lack evidence showing a link between them and a child’s best interests.160 Courts are apprehensive about placing a child in the home of a homosexual parent who is presumed to be engaging in behavior deemed illegal by the state,161 and claim that sodomy statutes “embody a state interest against homosexuality.”162 Despite the lack of evidence that “the parent in question actually participated in any statutorily prohibited conduct,” the courts, nonetheless, infer that sodomy laws have been violated.163 The result is that homosexual parents are punished for breaking criminal laws “without having been afforded any of the procedural protections normally guaranteed to criminal defendants.”164 In addition, the presumption of illegality allows courts to selectively invoke sodomy laws against homosexual parents when they cannot otherwise show parental unfitness,165 even if the particular state in which the family lives does not make such conduct criminal.166 Finally, a decision based solely on sexual conduct has no link to the best interests of the child and plays no role in the child’s well being, assuming, of course, that the child is neither present during the sexual activity nor aware of its occurrence,167 which would be equally true of heterosexual intimacy.


The Lawrence Court not only recognized that Bowers was out of sync with its recent privacy decisions, and thus wrongly decided,168 but also that Bowers had been used to justify every kind of discrimination against gay people because of the criminal stigma attached to their sexual intimacy.169 By grounding its ruling in the privacy and liberty interests protected by the Due Process Clause,170 the majority gave Lawrence the necessary sweep to undo certain forms of discrimination.

Although prejudice against homosexuality has not instantaneously vanished, the Lawrence decision will have a direct and immediate influence on child custody disputes. First and foremost, sodomy laws can no longer provide a legal justification for custody discrimination. The repeal of these statutes will cause a dramatic departure from the presumption that homosexuality is detrimental to a child’s welfare, with the greatest impact being felt in recalcitrant states such as Missouri, Virginia, and Alabama.171 Prejudiced judges cannot deny custody or restrict visitation rights solely because of a parent’s sexual orientation and the reputed belief that gay and lesbian parents are engaging in illegal behavior. all other factors aside, homosexual parents are now on a more even playing field with their heterosexual opponents.172 Gay and lesbian parents will be more confident when revealing their homosexuality, no longer fearing that they will jeopardize their rights as parents.

Next, the repeal of sodomy laws will take the spotlight off the parent and put it on the particular child involved in the dispute, a shift that validates the interest of promoting the welfare of the child. Courts-no longer focusing on the gay or lesbian parent’s illegal activity-will be more willing to concentrate on what is truly important: the child’s feelings, wishes and developmental needs.173 Narrow-minded judges will not ignore factors that may actually harm a child’s well being, such as alcoholism, conviction of a violent crime, or physical abuse.174

Finally, the Lawrence decision demonstrates a shift in public policy, specifically, at least in the Court’s view, that private same-sex intimacy is no longer considered detrimental to the welfare of society.175 Sodomy laws made certain forms of sexual intimacy illegal on the grounds of preserving public morality.176 But, by holding that homosexuals have the fundamental right to engage in such acts, the Lawrence Court indirectly stated that notions of morality no longer provide a legitimate basis for upholding the sodomy laws.177

When determining the best interests of the child, family courts may consider a parent’s morality, which is often assessed by reference to behavior deemed to be associated with probity.178 Before Lawrence v. Texas, judges were inclined to target homosexual conduct to indicate pervasive parental immorality.179 Now, however, the rationale that homosexual conduct will impair a child’s moral development cannot be used to deny custody to gay parents.180 Thus, absent other proof of unfitness, homosexual parents have the constitutional right to live with and care for their child.


Lawrence v. Texas has changed the traditional ideas regarding homosexuals and their fundamental constitutional rights. This decision will have a profound impact in family courts. judges can no longer be unconditionally unsympathetic to gay and lesbian parents or accept without question historical prejudices and unjustifiable theories about what happens to children who grow up in homosexual households. The ruling should also guarantee an impartial balancing of factors in the “best interests of the child” standard. Unfortunately, however, courts still have the ability to invent new reasoning within their power of discretion to rule, just as they did under the old laws. Beneficial to the children, however, is the fact that it will be more difficult for judges to use moral justification to stigmatize and punish parents for their nontraditional choices.

Additionally, although the repeal of sodomy laws is unlikely to have an instantaneous effect on certain realms of governmentsanctioned discrimination like the military’s anti-gay policy and bans on same-sex marriage, it will put gay people in a stronger position in court. Hopefully, as with the rationale behind custody discrimination, the Lawrence decision will gradually erode the reasoning behind other prejudicial policies, and they too will be declared unconstitutional,181 thus establishing equal treatment for homosexuals in two more important institutions of American society.

JENNIFER NAEGER[dagger][dagger] J.D. Candidate, june 2005, St. John’s University School of Law; B.A., 2000 Emory University.

Copyright St. John’s Law Review Association Spring 2004

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