Dispatches from the Creation Wars

Gay Parents and the Religious Right

Here’s yet another example of those “family values” we’re always hearing about. In Florida in 1995, Judge Joseph Tarbuck ordered that Mary Ward’s 11 year old daughter be taken out of her mother’s custody and given to her father, based solely on the mother’s lesbianism (as is normal in such cases, there was no evidence at all that Ward was a bad mother). In his decision, Judge Tarbuck says, “This child should be given the opportunity and the option to live in a nonlesbian world.” He doesn’t bother to mention that the father had spent 9 years in prison for killing his first wife in a custody dispute, and that another daughter of his first wife had testified that he had molested her when she was 14. In Tarbuck’s opinion, evidently, being a convicted murdered and a child molester makes you more qualified to be a parent than a lesbian. The appeals court upheld this decision in October of 1996; Mary Ward died of a heart attack in January 1997.

And here’s a bit of real irony. For those who think that Judge Roy Moore’s Ten Commandments fetish is merely a matter of religious expression and doesn’t effect his work as a judge, he oversaw a case in February of 2002 known as Ex parte H.H.. In this case, a mother had asked for custody of a child, alleging abuse by the father. The trial court ruled that while there was evidence of “occasional excessive disciplinary measures” by the father, this was not sufficent under Alabama law to warrant reopening the custody question. The Appeals Court, on the other hand, said they found substantial evidence of physical abuse and awarded custody back to the mother. The Alabama Supreme Court overturned the appeals court decision on a technicality, saying that the appeals court had wrongly overruled the trial court on factual questions rather than legal ones, something they didn’t have authority to do (under Alabama law, apparently, the appeals court must presume that the factual findings of the trial court are true and accurate).

But that wasn’t good enough for Moore. Not content merely to overrule the appeals court on the legal questions, he wrote a cocurring opinion to vent his spleen full of hatred of homosexuality in the process, saying. It is important to note that in neither the trial court or the appeals court was the mother’s lesbian relationship part of the decision. Neither court addressed it or based any part of their decision upon it, so it should have been entirely irrelevant to the Supreme Court. Nonetheless, Moore wanted to make it clear that no gay person would ever get a fair hearing in front of him. This is from his concurring opinion:

I concur in the opinion of the majority that D.H., the mother of the minor children in this case, did not establish a change of circumstances sufficient to transfer custody to her from H.H., the father of the minor children. I write specially to state that the homosexual conduct of a parent — conduct involving a sexual relationship between two persons of the same gender — creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others.

In this case there is undisputed evidence that the mother of the minor children not only dated another woman, but lived with that woman, shared a bed with her, and had an intimate physical and sexual relationship with her. D.H. has, in fact, entered into a “domestic partnership” with her female companion under the laws of the State of California. But Alabama expressly does not recognize same-sex marriages or domestic partnerships. ยง 30-1-19, Ala. Code 1975. Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature’s God upon which this Nation and our laws are predicated…It is an inherent evil against which children must be protected…

Alabama’s courts, even beyond the context of a custody dispute, have expressed a moral revulsion to homosexual activity, reminiscent of that expressed by Sir William Blackstone in his Commentaries on the Laws of England. Earlier courts refused even to describe the activity inherent in homosexuality, stating that “[the crime against nature] is characterized as abominable, detestable, unmentionable, and too disgusting and well known to require other definition or further details or description.”…

Natural law forms the basis of the common law. (7) Natural law is the law of nature and of nature’s God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures:

“The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity.” (8)

1 William Blackstone, Commentaries 42. Blackstone’s Commentaries explain that because our reason is full of error, the most certain way to ascertain the law of nature is through direct revelation. The ultimate importance of this law and its influence upon our law cannot be understated.

“Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former.”…

Homosexuality is strongly condemned in the common law because it violates both natural and revealed law. The author of Genesis writes: “God created man in His own image, in the image of God He created him; male and female He created them…. For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh.” Genesis 1:27, 2:24 (King James). The law of the Old Testament enforced this distinction between the genders by stating that “[i]f a man lies with a male as he lies with a woman, both of them have committed an abomination.” Leviticus 20:13 (King James).

So you see, the debate over the Ten Commandments displays in courthouses is not purely academic. It is symbolic not of the historic roots of American law (which is mostly a myth), but of Moore and his followers’ fervent desire to replace secular law with biblical law and impose their religious beliefs on all of us, to the point of destroying families and our hard won freedoms.

Comments

  1. #1 SharonB
    December 27, 2004

    In Missouri, the appellate court is also supposed to rule only on matters of the application of LAW, not FACT. The trial court is presumed to be the one that heard the testimony and decided fact.

    That being said, Appellate Courts routinely make findings of fact.

    In my custody case, although the trial court found that I should have frequent and meaningful contact with my children, the Appellate Court somehow divined an “implicit finding of possible harm” in the trial court’s imposition of a 1 year delay in contact (for counseling after the separation)– something the trial court had *explicitly* stated was not contained in the delay.

    Judges, by and large, rule howsoever they wish; and obtain a written opinion from some bright young clerk that furnishes a patina of conformity to actual law.

    There are actually two forces at work in the type of decisions you cite. One is religious fundamentalism. The other is the institutional corruption of the legal profession. Google on “Holodeck Law” to get more of a picture on how the second factor works.

    Justice is purely an accident of law.

  2. #2 Jon Rowe
    December 27, 2004

    “as understood by men through reason, but aided by direct revelation found in the Holy Scriptures.”

    Moore needs to take philosophy lessons from Harry Jaffa, another homophobe. Natural law is indeed Truth understood by men through reason, but it is wholly UNAIDED by direct revelation found in Holy Scripture.

    At best, a Thomist would argue that after we figure out the Truth UNAIDED by Revelation, we will be pleasantly surprised that Reason & Revelation, by in large, confirm & complement one another.

  3. #3 Andrew Wyatt
    December 27, 2004

    Jeebus. I had *assumed* that Moore, like all Christian theocrats, was a homophobe. I had no idea he was also a colossal prick. Is this really the model of morality for the Christian Right? I mean, if his opinion is any indication, he strikes me as a hateful man who takes pleasure in inflicting misery on others. Is this Christian love in action? Does the Christian Right really think that this mentality is consistent with feeding, clothing, and visiting “the least among you”? At risk of sounding judgmental myself, Moore’s words strike me as those of a Goat rather than a Sheep.

  4. #4 Jon Rowe
    December 27, 2004

    After reading that opinion, I think most would conclude that Moore got what he deserved in the 10 Commandments battle.

    As Maude used to say, “God will get you for that….”

  5. #5 SharonB
    December 27, 2004

    Moore’s exposition on the evils of homosexuality was gratuitous, to say the least. It was a simple custody case. He comments on everything from custody to behavior to adoption to scripture.

    Moore, et al., are Crusaders.
    They don’t care how many “Saracens”– men, women, and children– have to die in order for them to re-take Jerusalem.

  6. #6 Ed Darrell
    December 29, 2004

    Oh, to be a judge . . .

    Can you imagine what Moore would say if a judge in Alabama were to rule that he is unqualified to be a judge — or perhaps, that he should be disbarred as morally unqualified — because he took a “vain oath” in violation of the Ten Commandments, when he pledged to “uphold and defend” the Constitutions of Alabama and the U.S., and then subsequently welched on that promise to God?

    Heck, why not?

  7. #7 Sumixam
    December 30, 2004

    We already have biblical laws on the books. Laws against stealing, perjury, murdering, etc., all laws that are a part of the ten commandments. Are these laws threatening our liberties as well?

  8. #8 Ed Brayton
    December 30, 2004

    We already have biblical laws on the books. Laws against stealing, perjury, murdering, etc., all laws that are a part of the ten commandments. Are these laws threatening our liberties as well?

    And those are the only ones mentioned in the ten commandments that don’t threaten our liberties. The other 7 all would. And those 3 are universally held, not exclusive to societies that have the bible as part of their heritage. So they are “biblical laws” only by coincidental association.

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