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PRIDE and Family Law

Part 4: Palmore v. Sidoti (466 U.S. 429 (U.S. Apr. 25, 1984))

In custody battles between straight/LGBTQIA+ couples, one of the most common arguments that is brought up against the LGBTQIA+ parent is the concern that the child will face social stigma or bullying because the child resides with a gay parent. At first glance, this may seem like a legitimate fear, especially to parents or judges who themselves grew up in less tolerant areas or who were bullied as children. Fortunately for LGBTQIA+ families, social stigma is lessening every day, and studies have found that children with LGBTQIA+ parents don’t tend to get bullied any more than other children.

Personal Biases Can Impact Decisions

Despite the evidence, however, many judges still have personal biases and take the social stigma argument at face value. Family law attorneys in many states, including Washington, Alaska, California, and Massachusetts, are countering this argument using a Supreme Court case from 1984.

In Palmore v. Sidoti, divorced parents were in front of the court over custody of their child. The mother, a white woman, had custody of the child and then had remarried to a Black man. The child’s father, also white, sued for custody. The trial court gave the father custody of the child. The court decided that both parents were fit parents but that growing up in an interracial household would have a damaging impact on the child because of the stigma people felt against interracial marriages and the bullying the child would likely face. The court didn’t state any reasons for depriving the mother of her right to parent her child other than the race of her husband.

Supreme Court Ruling

The Supreme Court reversed this and held that a judge can’t use the racial prejudices of others as a reason to remove a child from a fit parent. To do so deprived people of their right to equal protection by treating a married interracial couple differently than other couples based solely on their race. The Court said that “private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect.”

While Palmore v. Sidoti is technically about interracial marriage and custody cases, the principle is not so different from gay marriages and custody. The stigma that the children of LGBTQIA+ parents face in the community is solely based on the private biases of individuals, something that Palmore v. Sidoti specifically prohibits as a basis for custody decisions.

Discrimination based on gender, like discrimination based on race, is something that the 14th Amendment prohibits unless there is an important government interest that requires different treatment. So private discrimination based on the gender of a parent’s spouse should not be upheld by the courts any more than discrimination based on race should. While there is still a troubling amount of prejudice based on both race and sexual orientation, the courts should not and, according to Palmore, cannot allow that discrimination to take place inside a courtroom.

Palmore v. Sidoti is one of the best arguments against denying an LGBTQIA+ parent custody based on the stigma that the child might face because of the parent’s sexual orientation or gender identity. In the meantime, we can and should all work toward creating a society where stigma against children being raised by LGBTQIA+ parents no longer exists.