I love the relatively new phenomenon of law reviews creating online editions of short pieces. It means instant accessibility for ideas that don't need 75 pages in a law review and don't need a zillion footnotes. So I'm happy to highlight a piece I contributed to UCLA Discourse on the subject of LGBT parents who wind up in disputes with heterosexual ex-spouses over custody and visitation rights. The piece is called Custody Rights of Lesbian and Gay Parents Redux: The Irrelevance of Constitutional Principles. It is part of a larger "volume" containing pieces submitted by participants in a UCLA symposium earlier this year called Liberty/Equality: The View from Roe's 40th and Lawrence's 10th Anniversaries. You can read all the submissions here.
My essay examines how constitutional arguments have never been winning arguments for LGBT parents -- not after Roe and not after Lawrence either. Every parent who has cited Lawrence in his or her attempt to keep custody or fight off a restriction on visitation rights has learned that a court can give lip service to the parent's constitutional right and then go right ahead and, well, discriminate -- without any real justification. I also argue that even the good states that require a "nexus" between a parent's sexual orientation or nonmarital partner and adverse impact on the child are missing the point. A parent's sexual orientation can never harm a child. And the nonmarital character of a parent's new relationship can never harm a child; if a new partner is bad for the child it shouldn't matter whether the parent has married that partner.
The cases I cite are sad but necessary checks on the enthusiasm generated by states whose laws accept our families. It's not that way everywhere.