No Jail Time For Coming Out

Tenn. appeals court bails out gay dad who told

son he’s gay, but maintains visitation limits

The Court of Appeals of Tennessee ruled on January 6 that Joseph Hogue had not violated a restraining order issued at his wife’s request and would not be jailed for confiding to his minor son that he is gay. The court reversed an order by Williamson County Chancery Judge R.E. Lee Davies that Joseph serve two days in prison for contempt of court.

Davies’ order emerged in the wake of Joseph’s wife, Cher Lynn Hogue, filing a divorce petition in February 2002, alleging “irreconcilable differences and inappropriate marital conduct,” specifically that Joseph had left the family to “pursue his gay lifestyle.” Cher Lynn also requested a restraining order against Joseph, asserting that he would expose their child to his “new lifestyle,” against the advice of the child’s counselor. The court’s opinion does not specify the age of the son, identifying him only as a “minor.”

Davies responded by issuing an order against Joseph, stating that he was “restrained, pending a final hearing in this cause, from taking the child around or otherwise exposing the child to his gay lover(s) and/or his gay lifestyle.” In August 2002, Cher Lynn filed a petition for contempt, alleging that Joseph violated the restraining order by “exposing” his son to his lover his home, and telling his son he is gay. Cher Lynn’s petition alleged that Joseph had explained his relationship with his boyfriend to his son and that the boyfriend’s presence in the apartment was obvious to the boy.

Davies found Joseph in contempt specifically for telling his son that he is gay, and ordered him to serve two days in the Williamson County jail. Davies also sharply cut back on Joseph’s visitation rights pending the final divorce ruling.

Joseph appealed these rulings, claiming that he had not violated the restraining order, which he claimed had expired, and that, in any event, the order was improperly issued.

Writing for the unanimous appeals court, Judge Frank G. Clement, Jr., found that the order was insufficiently specific without discussing whether Davies could have directed Joseph not to tell his son that he was gay without violating his constitutional right of freedom of speech. Clement found that language about “exposing the child to his gay lover(s) and/or his gay lifestyle” was not specific enough to have put Joseph on notice that he could incur criminal penalties just for telling his son he was gay.

At the same time, the court unanimously agreed that Davies did not err by issuing the order, based on Cher Lynn’s complaint and the child’s counselor’s recommendations, even though Joseph was not given an opportunity to challenge it. Clement found that Tennessee judges in domestic relations cases are given broad discretion to impose restraining orders even if only one party is present in court.

The restrictions on Joseph’s visitation rights will continue until the divorce proceedings are concluded or Davies modifies his order.

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