Parents who are gay exist in the shadow of a legal guillotine that lingers until the eighteenth birthday of their children. At any time during this period, the blade may fall and sever the parent-child relationship. This situation results from a combination of the legal system's homophobia and the peculiar nature of American domestic relations courts.

Systematic and widespread disapprobation of homosexuality is reflected in numerous court decisions and in many statutes. Criminalization of sexual activity between persons of the same sex has existed in various forms from the inception of the nation. However, since 1961 a continuous trend has emerged in the United States to decriminalize adult, consensual, private sexual behavior. Stimulated by the publication and adoption of the Wolfenden Report in England, Illinois adopted the Model Penal Code in 1961 and signaled a new perspective in public attitudes toward "victimless crimes." The Model Penal Code of the American Law Institute eliminated criminal penalties for all sexual behaviors except those involving minors, coercion or force, and public indecency. The Wolfenden Report in Great Britain urged the decriminalization of male homosexual behavior, a conclusion accepted by the British parliament. Not only have a large number of state legislatures decriminalized adult, consensual, private sexual conduct, but a significant number of state supreme courts have declared statutes that criminalized such behavior contrary to state constitutions. Reasons for the constitutional invalidity of the statutes have varied from violations of the right to privacy to denial of equal protection. To date twenty-six states have decriminalized private, consensual, adult sexual relations while twenty-four states and the District of Columbia still retain such laws. Most of the latter criminalize both heterosexual and homosexual acts; however, five states have statutes that criminalize only same-sex behavior.

Until 1986, the question of whether these statutes were valid under the U.S. Constitution was open. The trend in the development of the constitutional right of privacy led most legal experts to believe that the right of privacy protected all intimate sexual acts of adults in private. However, in the case of Bowers v. Hardwick, the U.S. Supreme Court, in a 5-4 decision, disabused legal experts of their opinions and to some extent shocked the public. In a case involving the arrest of a gay man in his own bedroom, the Court found permissible the criminalization of a broad range of sexual behaviors. While the majority opinion focused on homosexuality, the opinion did not forbid the criminalization of non-marital heterosexual behavior. The Hardwick decision does not technically affect the status of homosexual persons in those states that have decriminalized sodomy. Those states are not required to re-criminalize such behavior, and most experts believe they will not.

Nor does the decision affect in a technical sense those states that have such laws. The Hardwick decision simply allows states to retain sodomy laws free from a constitutional challenge based on federal constitutional privacy doctrines. Those states could decriminalize through either legislative action or through court action based on state constitutional grounds or non-privacy federal constitutional grounds. Indeed, the U.S. Supreme Court itself has yet to address the constitutional issues of equal protection and due process in this context.

The U.S. Supreme Court decision in Hardwick does, however, have a significant effect beyond its mere technical limitations. The language of the opinion made it clear that five Justices of the highest court in the land have a significant distaste for homosexuality and sexual practices that they dislike shall not during their tenure secure the protection of the right of privacy. This benediction of homophobia will reinforce the prejudices of lower court judges and encourage lay persons to use homosexuality as a legitimate tool in litigation with gay persons. In custody litigation, which we will discuss infra, the potential criminality of the gay parent in those states having sodomy laws has been used successfully to influence judicial decisions. In the past, lawyers representing the gay parent could cast significant doubt on the validity of such laws. Given the decision in Hardwick, the Supreme Court has placed its imprimatur on discrimination against gay persons, including gay parents.

In the civil area, discrimination against gay persons has been pervasive. In particular, employment discrimination has been rampant. At common law, a private employer is free to hire and fire at will. The only limitations on this right are created by statute. For example, title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, race, ethnicity or nationality. Other federal laws protect the handicapped and persons over forty. No federal law forbids employment discrimination on the basis of sexual orientation. One state and a number of cities, counties, and towns do forbid employment discrimination on the basis of sexual orientation, but in general, most gay employees of private employers are not protected. This lack of protection becomes relevant in custody cases in two ways. First, an implied sanction of discrimination occurs. Secondly, the gay parent's ability to fight openly is limited if he or she fears correctly the loss of employment as a consequence of a custody suit fought on the issue of homosexuality.

Gay persons employed by either the federal government or by state and local governments enjoy some employment protection as a consequence of statutes and judicial decisions that place stricter limits on the right of a public employer to hire and fire. Public actions must be consistent with the due process procedural restrictions of the U.S. Constitution and hence must be "fair." Due process requires that a public employer show a "nexus" between employment decisions and their rationale. Since governments have not been able to show any rational nexus between an employee's sexual orientation and his or her job performance, public agencies are limited in their formal ability to practice discrimination.

Other possible protections offered gay employees are found in union contracts that require "just cause" for employer actions and in new legal trends which are eroding the "employment at will" doctrine. However, in general, gay employees live with the constant possibility of job loss because of their sexual orientation. . .