Free speech and child custody
tbwolff at UCDAVIS.EDU
Wed Feb 13 07:58:49 PST 2002
> The same question can be asked in terms of parental sexual
> preference and behavior. If the sexual preference and/or behavior of
> parents who are separated are legitimately taken into account, then
> why not the behavior of parents who reside together and who, in
> some states, surely are violating (technically, if not more so) state
The question Jim poses provides a nice illustration of the continuing,
pernicious impact of Bowers v. Hardwick and state "anti-sodomy"
laws. Even though the laws themselves are rarely enforced, the
State often makes use of them to treat gay men and lesbians as
presumptive felons. This is, indeed, an argument that gets trotted
out regularly in custody cases.
Notice also that this argument gets deployed against gay and
lesbian couples, but never against straight couples, despite the fact
that the majority of "anti-sodomy" in this country do not say anything
about gender, criminalizing common sexual practices between any
consenting adults. In the same way that it is only non-whites who
have "race" in many legal discussions, so it is frequently only gay
men and lesbians whose sex lives are available for public scrutiny.
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