Lesbian and Gay Families and the Law: A Progress Report (1993)

The first stage has its roots in the mid-19th century, when isolated law reformers in Central Europe proposed that homosexuality be recognized as a morally neutral phenomenon and that harsh criminal penalties for same-sex behavior be removed.In the United States, the drive toward "Legalization" began in the 1950's with successful efforts to persuade the American Law Institute to recommend removal of penalties for private, consensual adult sex in the Model Penal Code.Beginning in the 1960's and accelerating through the 1970's, private consensual adult sex (including same-sex activity) has been decriminalized in more than half the states, usually through legislative reform, sometimes through judicial invalidation.For an excellent summary of this history, see WARREN JOHANSSON & WILLIAM A. PERCY, OUTING: SHATTERING THE CONSPIRACY OF SILENCE (1994).This trend received a temporary setback in 1986 in Bowers v. Hardwick, 478 U.S. 186, in which the Supreme Court held by 5-4 vote that Georgia's felony sodomy law did not violate the right of privacy found in the 14th Amendment's Due Process Clause.The first stage continues, however, as two jurisdictions achieved legislative reform in 1993 (Nevada and the District of Columbia), and state appellate courts in Kentucky and Texas have recently invalidated sodomy laws using state constitutional theories.Commonwealth v. Wasson, 842 S.W.2d 487 (Ky.1992); City of Dallas v. England, 846 S.W.2d 957 (Tex.Ct.App.1993).However, during 1994 the highest courts of Louisiana and Mississippi rejected state constitutional challenges to sodomy laws, although their decisions were premised on lack of personal standing by the criminal defendants, who were accused of public behavior, rather than on an ultimate rejection of the argument that the laws might be unconstitutional as applied to private, consensual sex between adults.Miller v. State, 636 So.2d 391 (Miss.1994); State v. Baxley, 633 So.2d 142 (La.1994).2. For example, in City of Dallas v. England, 846 S.W.2d 957, a lesbian applicant for a position as a police officer was denied the job on the basis of the Texas sodomy law.Police officials asserted that a law enforcement agency should not be required to hire someone who is a presumptive criminal.The court found the sodomy law unconstitutional, and held that the police department could not rely on it for this purpose.However, the United States Court of Appeals for the District of Columbia Circuit approved a similar rationale for dismissing a suit by a lesbian denied a position as an agent of the Federal Bureau of Investigation in Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987).In Constant A. v. Paul C.A., 496 A.2d 1 (Pa.Super.Ct. 1985), a Pennsylvania court deprived a lesbian mother of custody, asserting that her children might be endangered if she were to travel through a state that penalized sodomy and were to be arrested for committing the offense.The Virginia sodomy law was cited in Roe v. Roe, 324 S.E.2d 691 (Va.1985), as a public policy justification for denying child custody to a gay man.The decision was illustrative of custody or visitation decisions in jurisdictions with sodomy laws.E.g.,