A Tennessee state appeals court reversed an earlier order barring a gay father from "exposing" his son to a "gay lifestyle," deciding the prohibition was unenforceable under state law. The decision Wednesday means gay parents in Tennessee will be treated the same as heterosexual parents in child custody disputes, said attorney Rob Turner, who represented the father, Joseph Hogue.
"It removes any bias or discrimination the courts may have had against gay parents," he said. "There will not be any automatic assumption that just because a parent is homosexual they are not fit to have visitation."
The case began when Cher Lynn Hogue filed for divorce in February 2002. As part of a divorce hearing, a lower court issued a temporary restraining order that forbade Joseph Hogue "from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle."
Later that year, Cher Lynn Hogue filed a complaint that her husband had violated the restraining order by telling his son he was gay. A judge agreed with her and found Hogue in contempt of court and sentenced him to two days in Williamson County jail. The court also stripped away some of his visitation rights.
In January the state court of appeals cleared him of contempt. But the court went on to say that the restraining order was valid--a point the American Civil Liberties Union found objectionable and asked the court to reconsider. In the unanimous decision released Wednesday, the court decided the restraining order was not valid because it did not pass muster with state law requiring restraining orders to be specific. An overall ban on exposing a child to a "gay lifestyle" does not meet that
requirement, the court said.
"'Lifestyle' is certainly not a specific term," Judge Frank Clement wrote. "For example, prohibiting a parent from exposing a child to his or her 'heterosexual' lifestyle or 'urban' lifestyle or 'stoic' lifestyle, without description in reasonable detail of the acts restrained, affords little if any guidance." In writing the opinion, the court cited a 30-year-old case involving a coal company restraining order against miners. In that case a federal court ruled that a restraining order barring miners from picketing or interfering with company operations was too broad. "A further concern with vague and overly broad injunctions is the fear that a constitutionally protected right may be prohibited," Clement wrote.
The ACLU applauded the court's decision. "This is an important victory for gay and lesbian parents and their children," said Hedy Weinberg, executive director of the ACLU of Tennessee. "The same rules should apply to both heterosexual and gay and lesbian parents--that's what the court is saying."