Majoritarian Morality and Parental Rights

Abstract

This article addresses the implications of the Supreme Court’s constitutional doctrines on sexual privacy, equal protection, and family and parental rights for the adjudication of custody and visitation cases in which the parents’ sexual behavior offends the prevailing morality or their community. The Supreme Court has recognized a right of privacy that protects personal autonomy in certain decisions relating to reproduction, but has also noted that states may enact law to advance a majority view of sexual morality.In order to address these implications, the article examines the disjunction between the Court’s decision in Bowers v. Hardwick and the Court’s equal protection and substantive due process jurisprudence on family and parental rights.