And Then There Were None: The Repeal of Sodomy Laws after Lawrence V. Texas and Its Effect on the Custody and Visitation Rights of Gay and Lesbian Parents

By Naeger, Jennifer | St. John's Law Review, Spring 2004 | Go to article overview
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And Then There Were None: The Repeal of Sodomy Laws after Lawrence V. Texas and Its Effect on the Custody and Visitation Rights of Gay and Lesbian Parents


Naeger, Jennifer, St. John's Law Review


INTEODUCTION

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.

I. HISTORICAL EVOLUTION OF SODOMY LAWS LEADING UP TO LAWRENCE

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.

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