Marriage and Family
By November 2004, 18 states had constitutional amendments banning same-sex marriages. In some states, legal relationships of any sort between gay couples are not recognized, including marriages, civil unions, domestic partnership or any other union between same-sex couples. Additionally, Congress has passed the Defense of Marriage Act defining marriage as a union between a man and a woman and authorizing states to refuse to recognize same-sex marriages legally performed in other states.
Gay Parents
Legal issues concerning custody, adoption, guardianship and inheritance where the sexual orientation of one of the parties is a factor vary among the states. Many states have laws that do not allow foster children to be placed in a home where a gay adult resides. Recently, federal courts have upheld laws prohibiting adoption by gay individuals in Florida that were challenged as violating the Equal Protection Clause. The court held that there is no fundamental right to adopt; that adoption is a public act and that the best interests of the child are paramount.
Some gay parents have been prohibited from exposing children to their sexual orientation through specific prohibitions set out in custody orders, such as not being permitted to take a child to a gay-rights meeting. Those types of prohibitions do not violate the gay parents' civil rights. However, the order entered by the court cannot simply prohibit exposure to "sexual orientation." The order must be specific in its terms and references or it violates the Equal Protection Clause, since the nongay parent is affected completely differently by the same "no exposure to sexual orientation" provision.
In custody issues, the law does not encourage decisions based solely on sexual orientation. However, the impact of the parent's sexual orientation will be examined and will be a factor in determining custody.
TIP: Extramartial affairs, adultery and sexual promiscuity all weigh in the judge's award of custody and visitation regardless of sexual orientation. The court will allow evidence on those issues in a custody trial.