concurring. I fully concur with the result reached by my colleagues and agree that the chancellor’s findings with regard to the best interest of these children are fully supported by the evidence and that his decree should in all things be affirmed. I do, however, desire to more fully express my views respecting the argument that appellant’s preference for homosexual sodomy is constitutionally protected under the due process clause.
In her testimony, the appellant graphically described the sexual activities she engaged in with another female with whom she shared a bedroom in an Austin, Texas, house in which the children would also reside. The people of both Texas and Arkansas have declared the conduct she described to be so adverse to public morals and policy as to warrant criminal sanctions. Arkansas Statutes Annotated § 41-1813 (Repl. 1977) defines her conduct as “sodomy,” and Tex. Penal Code Ann. § 21.06 (Vernon 1974) labels that activity “homosexual conduct.” The statutes of both states authorize the imposition of criminal penalties against those who engage in that conduct.
In Bowers v. Hardwick, _U.S. _, 106 S. Ct. 2841 (1986), the Supreme Court of the United States held that Georgia’s law imposing felony penalties for homosexual sodomy violated no constitutional guarantees. The Court declared that neither the Constitution nor the due process clauses of the Fifth and Fourteenth Amendments confer a fundamental right on homosexual persons to engage in sodomy, even in private places. The Court found a reasonable basis for the prohibition of such conduct in the declared belief of a majority of the people of Georgia that such conduct was immoral and wholly unacceptable. Noting in its opinion the deep-rooted abhorrence with which homosexual sodomy has been historically viewed by the people of this country since before the adoption of the Constitution, the Court rejected due process arguments by simply stating that, if all laws based on moral choices were to be invalidated under the due process clause, the courts would indeed be very busy.
The people of this state have declared, through legislative action, that sodomy is immoral, unacceptable, and criminal conduct. This clear declaration of public policy is certainly one that a chancellor may note and consider in child custody cases where, as here, the custodial contestant has declared her fixed determination to continue that course of illegal conduct for the rest of her life, in a home in which the children also reside, and to justify her conduct to the children if and when they find her out.