A Colorado judge has ordered a mother not to expose her daughter to "teaching... that can be considered homophobic."
Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic."The judge awarded joint custody, despite the fact that the former lover did not officially adopt the child.Dr. Clark filed her appeal with the Colorado Court of Appeals last week.
Her former lover, Elsey McLeod, was awarded joint custody of the child, an 8-year-old girl who is Dr. Clark's daughter by adoption. ...
"Elsey never adopted this child. It's an egregious situation because the court is giving custody to someone who is not related to the child and has not adopted the child," Mr. Staver [a lawyer with Liberty Counsel] said.
Mathew Staver, a lawyer speaking for Dr. Clark, goes on:
"The mother is a Christian, and that's a major part of her lifestyle," he said. "She would be prohibited from reading her daughter Romans 1 or anything in the Bible on sexual fidelity in marriage, going to Bible study, or listening to a sermon on marriage or fidelity."The judge's order seems to be atrocious, absurd, and in clear violation of the 1st Amendment as well as common parenting rights.
Update:
Eugene Volokh comments and notes the "best interests of the child" standard that courts use in custody decisions. Under general circumstances, it's for the parents to decide what is in the child's best interests, but when parental custody itself is involved, it gets much more complicated. What about when the child's "best interests" conflict with the parent's Constitutional rights? Among many other things, Eugene says, "But what this means, I think, is that sometimes the parents' constitutional rights should prevent a judge from rendering a decision that he thinks is in the child's best interests."
Eugene Volokh gives you a hat tip and addresses this issue here from a more legal perspective.
Given that the teaching could be construed as disparaging the other parent, the judge ruled accordingly.
1st ammendment rights would not weigh heavily in this case.
Taking the argument in a slightly diferent direction.
Would it be logical in a divorced setting for one parent who was a Baptist to have the right to teach their child that Catholics are not true christians, given the other parent is a Catholic?
It has happened.
It creates a confict and negative picture of the other parent.
Eugene Volokh disagrees with your dismissal of the parent's 1st Amendment rights, and he knows what he's talking about. Furthermore, aside from any legal issues, it's only logical. The government should not be allowed to restrict speech unless it causes imminent danger, which even the strongest religious teaching would not.
The First Amendment argument can only be used effectively if one parent loses legal custody.
The best interest of the child standard that Mr. Volokh wrote about becomes the operative guideline that a court will use in determing a custody decree.
That operative guideline includes; parents will not disparage the other parent. Imminent danger is not the required threshold, emotional turmoil is.
The compelling interest doctrine/test that you have brought in is not valid. The parent is not allowed to disparge the other parent period. And in this case according to the court, the parent is disparaging the other parent when that parent teaches the child that homosexuality is wrong.
It is presumed by the court's ruling that the child would be harmed emotionally by this.
There are other avenues other than a First Amendment constitutional challenge that could be argued in this case. And should be.
Here is one weakness that is made by Liberty Counsel.
Mathew Staver, president of Liberty Counsel, a public-interest law firm based in Orlando, Fla. . . . [said] the order effectively prevents the mother from practicing her religion in her daughter's presence.
The mother can practice her religion, but she has to be "diplomatic" in teaching the child about homosexuality.
Mr. Volokh correctly states:
If a judge honestly applies the best interests of the child standard, then the answer might well be that it's in the child's best interests for the parents' speech and religious practice around the child be restricted. Here's a thought experiment: Imagine that you were dying, and you were trying to decide whom to select as your child's custodian. Presumably your main concern would be the child's best interest. If you have two people from whom you can choose, wouldn't you consider what each person is likely to tell the child as part of your evaluation of who the best parent would be? And if you had the power to somehow order the custodian not to say certain things to the child as a condition of giving the person custody (assume your child is much in demand, so such a condition would stick), and if you found that the best prospective parent was generally very good except for some belief that you thought it would be really bad for the child to learn, wouldn't you consider using that power (unless you thought that such an order would be counterproductive in other ways)?
Well, the best interests of the child standard more or less puts the judge in that same position. It's true that the judge in this case made a subjective decision about what's best for the child that others might not make. But that's the nature of the "best interests" standard.
And that is the danger of the statues that surround custody decisions. They allow a court to be very subjective, and in most cases the appellate courts will side with the lower court unless there has be an abuse of discretion.
Yes, I understand how courts often rule now, my point is that they are incorrect in subsuming the parents' 1st Amendment rights to the subjective so-called "best interests" of the child.
The government should not restrict speech because of emotional turmoil. I certainly understand that they do so, but I think they do so in violation of the 1st Amendment.
There are many things about custody battles that I think are horribly wrong, having been the subject of one myself.
One thing to be clear about here is the First Ammendment. Freedom of Speech, contrary to what most people think, does not give you the right to say anything you want any time or any place. The First Ammendment states clearly that "Congress shall make no law ..." In this case, Congress made no law. The Judge made a ruling.
Many of the other articles of the Bill of Rights make no such limitation as "Congress shall not" and so are interpreted more broadly. But just because you WANT to yell "Fire" in a crowded theater doesn't mean that the First Ammendment gives you the RIGHT to do it.
Just because you WANT to teach your ex's child that Homosexuals are evil doesn't mean that you CAN.