Neutering Parents: Parents’ Sexual Liberty and Marriage
Recent reports of a Texas state court order requiring a divorced custodial mother’s cohabiting female partner to stay away between 9 pm and 7 am while the children were in the home brings to mind the continued discrimination against same-sex couples and same-sex couples with children through custody law, despite major strides on the marriage access front. In my 2012 article The Neutered Parent, I explore the ways in which custody law has historically been used to enforce norms of sexuality against women and sexual minorities, particularly to discipline sexuality into a marital framework. The problem with this judicial action, of course, is that same-sex couples may not marry in Texas. The wider availability of marriage, however, would not necessarily diminish the assumption inherent in such “morality clauses,” that parental sexuality is best pursued in a marital context. Broader access to marriage/marriage rights, including as conferred by the federal government following Windsor, should prompt us to consider with greater attention the rights of parents outside of the marital sphere. Analysis of the latest Census data highlights the class-based disparities in who gets married and who doesn’t. Nonmarital parents constitute a significant and growing percentage of parents. These reports raise the question of how custody law should address such realities of contemporary family life. Is the answer to bring more parents into the marital fold? The Texas case suggests continued reliance on heterosexual, marriage-based norms of parental sexuality. As I discuss in The Neutered Parent, the ALI’s 2002 amendments to custody provisions pertaining to parental sexuality fail to foreclose the types of thinking that animate discriminatory custody decisions. While the ALI suggests focusing on parental “conduct,” rather than relying on biased assumptions about how parental sexuality and nonmarital sexuality pertain to children’s best interests, the ALI might provide more explicit criteria for what qualifies as relevant conduct. Without such clarification, actions that might not read as “sexual conduct” in a marital setting, like a parent’s private consumption of pornographic material, might look like evidence of relevant conduct in a nonmarital setting. This is because of what I describe in The Neutered Parent as the perceived “sexual salience” of nonmarital parents in judicial determinations of custody. Greater clarity regarding relevant parent conduct can better serve sexual liberty interests as promised by Lawrence v. Texas.