Paul McGuire | Legally LGBT
A morals clause is a part of a contract that requires someone to act morally. How morality is defined changes from person to person. Many people still consider it immoral to live with someone you are romantically involved with before marriage. These clauses can appear in divorce agreements, employment contracts, and endorsement deals.
In a divorce, they typically exist to protect the children from being introduced to multiple romantic partners. In the other two instances, they exist to protect the image of the company from being tarnished by the actions of the employee or athlete.
Lately, a case has been discussed in the LGBT news outlets in which a lesbian woman living with her girlfriend was told that she would not be allowed to have custody of her children while her girlfriend is living with her in the same house. I do not practice law in Texas, but a review of cases in that state suggests that such a restriction is permissible and quite common. The cases I could find discuss instances in which parents have been prevented from having unrelated opposite-sex individuals over while the children are staying with them.
Texas law gives judges discretion to place those restrictions on parents after finding that it is in the best interests of the children. The biggest difference when dealing with a same-sex relationship is that Texas does not allow same-sex couples to marry.
While a divorced woman can marry her serious boyfriend to get around a clause preventing unrelated overnight visitors, the lesbian woman here does not have the same option to marry her girlfriend. Most likely, even if they were to marry in another state and return to Texas, the judge would not recognize their marriage because Texas does not recognize any same-sex marriages.
While a similar restriction could also be imposed in California, they are not common. California courts have said that a judge may not prohibit a parent from having custody of children simply because the parent is in a relationship with a person of the same sex without evidence that there is a danger to the child.
However, parents can be prevented from having overnight guests of the same sex or opposite sex in California if the judge finds that it is not in the best interests of the child. One major difference in California is that same-sex couples can enter into domestic partnerships so they would be treated as married once they do.
What does the typical case where there is harm look like? In some states this is limited to sexual behavior in the presence of the children. Judges in other states have found that simply having the child around a parent’s same-sex partner is harmful. It is unclear whether the judge in Texas found some evidence of harm or simply decided to enforce the restriction because of his personal biases.
The idea of contracts that prohibit certain behavior believed to be immoral is not limited to divorce. In the sports world, it is common for players to have morals clauses in their contracts. This is because athletes frequently serve as role models for children. Publicity of actions a sports team believes reflect badly on the image they want to present can lead to athletes losing major endorsement deals.
Another area where we have seen morals clauses in the news recently is with employees of religious institutions or schools. Consider for example a teacher at a Catholic school who comes out as gay or lesbian. While ordinary schools might not consider this a problem, most Catholic schools have included morals clauses in their contract for some time now as a way of ensuring that they can fire employees who fail to follow Church teachings.
Thus, unless a state prohibits termination for sexual orientation, a teacher at a Catholic school who comes out as gay or lesbian may find themselves out of a job because many churches still consider same-sex sexual activity sinful. In one case, a female teacher at a Catholic school was terminated because she got pregnant while she was not married to the father.
It is not clear whether the current version of federal employment non-discrimination act that would protect individuals from termination based on sexual orientation or gender identity would include an exception that would allow religious schools to fire gay and lesbian employees even if it is passed. Until a restriction is in place, it is perfectly legal for Catholic schools to fire gay and lesbian teachers. This is why comprehensive employment protection is so important.
—Paul D. McGuire is an openly bisexual family law attorney in San Diego who assists families dealing with dissolution of marriage and domestic partnerships. He writes a blog on family law and LGBT issues at paul-mcguire.com.