“Lifestyle” Restraining Order Rejected

Tennessee appeals court says father can’t be barred from telling son he is gay

The Tennessee Court of Appeals reversed a trial court ruling that Joseph Hogue may not “expose” his son to his “gay lifestyle” pending final resolution of divorce proceedings in which custody and visitation are at stake.

Issuing a new decision in the case on March 24, the court reconsidered and rejected its prior ruling that had upheld the restriction. Judge Frank G. Clement, Jr., wrote the opinion for the unanimous three-judge panel of the court in Nashville.

Most significantly, the court of appeals ruled that gay parents may not be subjected to different standards for visitation from non-gay parents.

Hogue’s wife sued for divorce in February 2002, claiming irreconcilable differences and inappropriate conduct by Hogue, who she alleged had left the “marital home” to “pursue his gay lifestyle.” She claimed that Hogue would expose their son to his “gay lifestyle,” which would be detrimental, according to the child’s counselor, and requested that the court issue a restraining order to prevent him from doing this.

A compliant Williamson County Chancery Court judge, R.E. Lee Davies, then issued an order that restrained Hogue, “pending a final hearing in this case, from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle.”

But Hogue was allowed to have visitation with his son while the divorce case was pending, and ended up telling his son that he was gay. When Hogue’s ex-wife found out, she filed a petition with the court, seeking a finding that Hogue was in contempt of the restraining order. She alleged two violations: that her son had been introduced to his father’s gay lover, and that Hogue had told the youth that he was gay.

After a contempt hearing in which the child’s counselor testified that he had advised against telling the boy about his father’s sexuality unless the counselor were present to assist, and that he felt the way the boy was told had been detrimental to him, Davies found that Hogue had violated the restraining order by “exposing” his son to his “gay lifestyle,” and sentenced Hogue to two days in jail as punishment.

Hogue appealed the contempt ruling. In an opinion issued on January 6, the court of appeals found that the restraining order was not specific enough to justify jailing Hogue for telling his son he was gay, but that the order would remain in effect pending final resolution of the case. The Lesbian and Gay Rights Project of the American Civil Liberties Union, representing Hogue, appealed for a rehearing, arguing that the “gay lifestyle” restriction was too vague to be left in effect.

Upon reconsideration, the court decided that the word “lifestyle” used in the restraining order was sufficiently ambiguous that it would be inappropriate to find Hogue in contempt or leave such an order in effect. The court found that the term “affords little if any guidance to the court or the party restrained as to what is or is not restricted.”

Insisting that resolution of this case “does not hinge on Mr. Hogue’s sexual orientation,” the court found that the phrase “heterosexual lifestyle” would be equally ambiguous as “gay lifestyle,” the problem being with the word “lifestyle.”

“It is not necessary to create new and different visitation rules and restraints depending on sexual orientation,” the court wrote. “Visitation decisions should be guided by the best interests of the child. Generally, it matters little who the parent is or what he or she does when the child is not visiting. What matters is whether the parental conduct during visitation is harmful to the child. Neither gay parents nor heterosexual parents have special rights. They are subject to the same laws, the same restrictions.”

Having found that the restraining order was insufficiently specific, and thus invalid, the court of appeals held that Hogue could not be punished for “violating” it. Furthermore, the court decisively rejected Mrs. Hogue’s argument that restraining orders issued in domestic relations matters need not meet the specificity standard. Although a provision of Tennessee law appeared to give courts much more leeway in issuing restraining orders in such cases, the court of appeals found that the intended leeway had to do with other matters, not with the requirement that they be adequately specific to comply with constitutional requirements of due process of law.

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