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"Make Sure That There Is Nothing in the Religious Upbringing or Teaching That the Minor Child Is Exposed to That Can Be Considered Homophobic":

A commenter responding to my hypo in which a judge denied a parent custody because the parent's teaching of traditionalist Christianity was against the child's best interests suggested that the hypo was implausible, because Christian beliefs are so widespread in the America. Well, it was meant to be pretty extreme, though I suspect that in a few jurisdictions traditionalist Christian beliefs about sexual morality are in the minority.

But let me remind people of this story from 2003 and 2004, though one that arose in the special case of a parent's Christian teachings being implicitly critical of the other parent. First, the original news story from November 2003:

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

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." ...

Now, an excerpt from the July 2004 appellate opinion reversing the order, but leaving open the possibility that it could be reimposed:

"While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.

When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her ... religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's ... decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." ...

Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person ... with responsibility for decision-making" within the meaning of § 14-10-130(1)....

[W]e cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual.

Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary....

So the restriction was lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed.

The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.

What do you folks think?

1. Should a judge be free to order a parent 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"? Should the judge be allowed to so order only after a specific finding that without the restriction, "the child's emotional development [would be] significantly impaired"?

2. If your rationale is that the judge can and should order a parent not to teach things that could undermine the child's respect for the other parent, say that Clark's ex was a racist. Should the judge have been allowed to order the child to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be consider racist-phobic"?

I believe that hostility to lesbians is indeed morally wrong while hostility to racists is morally right. But does the First Amendment distinguish the two, and conclude that orders not to teach a child homophobia are permissible (at least when such teachings could undermine the child's respect for the other parent) while orders not to teach a child hostility to racists are impermissible (even when such teachings could undermine the child's respect for the other parent)?

(For my answer to these questions, see PDF pages 86-88 of my article.)

JunkYardLawDog (mail):
Well, me personally, I believe homophobic is too vague and undefined a term to support a contempt conviction or other punishment. I believe the judge's order should have to define what kinds of things are homophobic and what kinds of things aren't homophobic. Otherwise the person subject to a contempt finding or other punishment would be unable to determine in advance what is proscribed and what isn't by the order and in many jurisdictions (and it should in all jurisdictions) render the order unenforceable by contempt at a minimum.

For example, I'm sure many pro gay groups define all christians as homophobic so merely mentioning christianity with a positive viewpoint would be homophobic in their eyes. If the mother teaches the bible clearly says homosexuality is an abomination before the lord (which it does in the old testament) is that proscribed? What if she teaches the christian principle that you hate the sin but love the sinner, so homosexual acts are an abomination before the lord, but a currently celebate homosexual could be loved by the lord and find his/her way to heaven? Would this violate the order?

What if the custodial parent exercises her right of free association by having the local skin head chapter hold meetings in the family living room and invite the child to attend? It would seem to me that EV would have to argue this is a OK since he argues other constitutional rights of parents can't be limited in divorce.

I actually think the term homophobic which implies an irrational fear of homosexuals is completely inappropriate and a creation of the victimhood crowd as a means to objectify and poor hate upon those whose moral beliefs are different from the pro homo crowd. I think it would be no different than if the anti-homosexual crowd invented the term buttaphobic or should it be vaginaphobic for the pro-homosexual crowd.

Says the "Dog"
8.2.2007 9:15pm
PersonFromPorlock:
EV: I suspect that one of the unlearned lessons from the Third Reich is that monstrosities can result when the state becomes the source of morality and so the arbiter of its own virtue. Regardless of the specifics here, your judge is travelling down that path.
8.2.2007 9:16pm
notalawyer (mail):
A lot turns on what "homophobic" means here. Does the judge forbid trying to instill a burning hatred of gay people in the child? Or does homophobia mean teaching the child (perhaps mildly, perhaps as one small part of a general moral education) that homosexual behavior is wrong? If the latter constitutes homophobia, the judge is wrongly trying to impose his/her moral views on the parent.
8.2.2007 9:19pm
anonymous philly lawyer:
Given the inherent difficulty in applying the "best interests" standard in these types of situations, I was curious (I speak as a lawyer with no family law experience)--would it be possible to jettison the "best interests" standard, and replace it with (for example) a series of default rules, which would be rebuttable on clear and conv. evidence, and/or allowing the parents to contract ex ante around the defaults? Or replace it with something else? Any ideas from people who are more knowledgable/experienced in family law? any family law profs?

My idea has lots of problems, I'm sure, but it gets judges out of the business of being the child's "uber-parent" which is a power that is so subjective I don't want judges to have it. I would welcome any solution that would diminish the discretion of the judge (and every other government actor) since discretion is an open invitation to bias. More rules, please!
8.2.2007 9:23pm
Roger Schlafly (www):
No. Absolutely not. Judges should be no more able to curtail the free speech of divorced parents as anyone else. There isn't even any scientific evidence that homophobic or racist parental speech is harmful. Even if there were, divorced parents should have the same Constitutional rights as everyone else.
8.2.2007 9:42pm
DRJ (mail):
I don't think it's hostile to believe homosexuality is a sin or to advocate "love the sinner, hate the sin." However, if you believe otherwise, then I submit you have no choice but to define traditional Christian teachings as hostile and equivalent to racism. I hope that's not what you meant.
8.2.2007 9:43pm
Lively:
People do not think it's possible to judge an act to be morally wrong without "hating."

I happen to think stealing is wrong. But do I hate thieves? Of course not. Even when my car is stolen, I do not hate the person who did it.

Sometimes I think it's homosexuals who "hate" people who disagree with their views.
8.2.2007 9:56pm
plunge (mail):
"I'm sure many pro gay groups define all christians as homophobic"

This is so misinformed that it's almost laughable. To begin with, most gay people in America are Christians. If you think that "many" gay rights groups define all christians as homophobes, I suggest you cite some mainstream ones to prove your point.

"There isn't even any scientific evidence that homophobic or racist parental speech is harmful."

If you are the Roger Schlafly related to Andrew and Phyllis, I'd say that you guys are all the evidence anyone needs.
8.2.2007 10:01pm
Jake D.:
I think Scalia was right in his Lawrence dissent.

P.S. for all of you upset with Nancy Pelosi for taking impeachment "off the table", I just got this encouraging e-mail:

"Note: For people who have been asking, my formal announcement as a candidate against Nancy Pelosi has been pushed back to August 9 due to logistical concerns. www.CindyForCongress.org should be going live soon with more details and a way to donate to my campaign."

RUN, CINDY, RUN!!!
8.2.2007 10:05pm
Eugene Volokh (www):
Jake D.: OK, say Scalia was right -- how does that answer the questions I posed?
8.2.2007 10:20pm
Reg (mail):
I think I've said this before here, but these difficult issues involving the 1st amendment and Family Law is a good reason why the 1st amendment ought not be applied to states in the same manner it is applied to the federal government.
8.2.2007 10:21pm
ReaderY:
In the 1998 case Pulliam v. Smith, the North Carolina Supreme Court held that refusing to teach children that sex outside of marriage is wrong is detrimental to children's welfare and a basis for denying custody.

I think that liberal states are as entitled to their set of beliefs as to what makes a good parent as conservative states are to the theirs. Divorced parents do not have a right to be the custodial parent, and I believe the consitutional limitations on the considerations that can be taken into account are very limited. Nonetheless, I believe that these considerations are limited to selecting which parent should have custody. Once the custodial parent is selected, I would agree that a court cannot tell a custodial parent what religious beliefs to teach their children.
8.2.2007 10:24pm
Jake D.:
Well, #1, it is directly responsive to your very first question: "What do you folks think?" #2 without MORALITY in the law, it matters not what the judge can, or cannot do, because ANY "child's emotional development WILL BE significantly impaired" as well as said child's physical and spiritual development -- of course, since you "believe that hostility to lesbians is indeed morally wrong" I would think that YOU of all people would want said "morality" enshrined in the law. I guess the default position of ZERO MORALITY is an acceptable second choice.

Does that answer your questions?
8.2.2007 10:28pm
Randy R. (mail):
"I don't think it's hostile to believe homosexuality is a sin."

And yet, of course it is quite hostile, especially to gays.

"I happen to think stealing is wrong. But do I hate thieves? Of course not. Even when my car is stolen, I do not hate the person who did it. "

And the avid follower of the Bible would also consider the wearing of mixed fibers to be sinful, as well as eating pork and shellfish. Now, I don't hate people who eat lobsters and shrimp because what they do is so immoral, but I do feel sorry for them for the fact that their souls will be damned to hell.

But since the question is whether a parent can teach such morals, I think that any parent who allows their children to eat pork simply isn't fit to be a parent.

AFterall, without morality, what is left of the law?
8.2.2007 10:55pm
happylee:
Maybe one day you can clarify this sentence:

I believe that hostility to lesbians is indeed morally wrong while hostility to racists is morally right.


As to your question: It is arguably possible to tell a parent not to disparage the other parent while at the same time permitting the parent to express the view that God does not approve of the latter parent's behavior. This is different from a judge expressing approval or disapproval for lesbians, Christians, etc. The problem is that practically speaking, most family judges have monster case loads, strong biases and, let's face it, fairly low IQ's.

In practice, a homo-parent is likely to get a favorable ruling over a bible-thumper in NYC family court, while the latter is likely to get a favorable ruling in Lee County, Alabama. And who is to say that is wrong? Are we not the "united states"? Must broken families be treated the same everywhere?
8.2.2007 11:02pm
Roger Schlafly (www):
I believe that these considerations are limited to selecting which parent should have custody. Once the custodial parent is selected, ...
Many states routinely award equally shared custody to both parents. There is no need to decide which parent has the morally superior lifestyle, or to name one parent as the custodial parent.
8.2.2007 11:03pm
Jake D.:
And, if you elect enough legislators to outlaw lobster and shrimp, you'd be set.
8.2.2007 11:04pm
DRJ (mail):
Randy R.,

How is it hostile? To oppose something doesn't make me hostile.
8.2.2007 11:13pm
crane (mail):
I'm going to have to take issue with the whole "love the sinner but hate the sin" line of argument. When the sin in question is homosexuality, many if not most of those who claim to follow that principle seem more concerned with hating the sin, or being seen to hate the sin, than loving the sinner. They'll tell a lesbian they're praying for her, but won't let her forget for an instant that they think her romantic relationships are sinful and wicked.

And let's be honest, when someone says to you that you're a wicked sinner and they're praying God changes you, that doesn't sound like love.

My take on the anti-gay teachings versus the anti-racist teachings:

Racism is nothing more than a set of beliefs. It doesn't affect who you are or who you love, except insofar as you may prefer someone who shares your beliefs. Homosexuality, on the other hand, is an orientation, and by definition changes who you're likely to fall in love with. It's much easier to teach a child that mommy is a good person with some mistaken beliefs than it is to teach her that mommy is a good person who likes to commit wicked sins by dating other women. There's quite a bit of cognitive dissonance in the latter.
8.2.2007 11:26pm
JunkYardLawDog (mail):
DRJ, I didn't think I expressed a personal opinion one way or the other in my original post. I'm probably even a bit more liberal than the hate the sin love the sinner part. My personal preference for me personal not necessarily suggested as a public policy preference would be to just not to have to think any particular way about homosexuality or homosexuals, by not seeing it and by not having it so publicly rubbed in our collective faces that I am forced to have a public opinion on the matter.

Plunge, would you like it better if I had said "evangelical christians or fundamentalist christians" instead of just christians? Would that make my claim more true in your eyes?

Says the "Dog"
8.2.2007 11:34pm
Waldo (mail):
Somewhat off-topic but, why not assume that ending a relationship involving children is, by definition, not in the best interests of the child. Domestic violence or infidelity are obvious exceptions, but otherwise the person "left" should have preference for custody.
8.2.2007 11:35pm
Lively:
crane,

My views on homosexuality parallel my views on fornication (that is having heterosexual sex outside of marriage). They are both morally wrong. A view no one on this forum shares, I'm sure.

I do not hate/refuse to do business with/discriminate against fornicators. But I disagree with their life style and I think fornicators have harmed society in a variety of ways.
8.2.2007 11:39pm
DRJ (mail):
I don't view homosexuality as a choice but I do view living a homosexual lifestyle as a choice. Thus, based on my values, it's a choice that I hope my children won't make. It's a red herring to claim that I'm hostile because you and other people don't agree with me.

It's not that different from other lifestyle choices I make. For instance, I don't want my minor children riding motorcycles but I don't object if my grown children and neighbors buy or ride motorcycles. I certainly don't teach or encourage my children to hate motorcycle owners or riders. Thus, should you be able to stop me from teaching my children that motorcycles are dangerous or prohibiting them from riding simply because you think my views are hostile to motorcycle riders?
8.2.2007 11:39pm
Cornellian (mail):
I don't view homosexuality as a choice but I do view living a homosexual lifestyle as a choice. Thus, based on my values, it's a choice that I hope my children won't make.

So if a child of your turns out to be homosexual you'd rather they be alone their entire lives than live in a long term relationship with someone of the same sex? That's a strange value system.
8.2.2007 11:43pm
Reg (mail):

When the sin in question is homosexuality, many if not most of those who claim to follow [the principle of hate the sin love the sinner] seem more concerned with hating the sin, or being seen to hate the sin, than loving the sinner


Then the problem is with those who are out of balance, and not with the principle. I think those you are speaking of might respond that because they love the sinner they want the sinner to stop sinning. And the appropriate response by the sinner who doesn't believe he or she is sinning is to not give a care about what anybody else thinks. I don't care that Muslims think my eating of bacon is sinful, or that atheists view my worship as irrational because I'm not a Muslim or an atheist. Why do those who disagree with devout Christians take such offense when these Christians say their Bible says homosexuality is sinful?

I would agree with your assessment that some of those who claim to be only hating the sin have a special dislike of homosexuality. Really, Christians who follow the Bible's prescriptions against homosexuality should not treat homosexual sex as being any worse than any other sex outside marriage, because the Bible doesn't sanction any sex outside marriage.
8.2.2007 11:44pm
A. Zarkov (mail):
"I happen to think stealing is wrong. But do I hate thieves? Of course not. Even when my car is stolen, I do not hate the person who did it. "

If someone steals my car, I'm going dislike him enough to want him punished severely enough so he and others won't try to steal anyone's car. Hate and the desire for retribution are natural and virtually universal human emotions that serve a valuable purpose. If the state refuses to punish, then people will resort to private justice.
8.2.2007 11:45pm
Kovarsky (mail):
EV: I don't think the first amendment treats the two differently. Each constitutes viewpoint discrimination. But even if you apply the same first amendment test, it seems that the case that the compelling interest in the strom thurmond example is stronger than in the homophobe example.

Obviously that's just a restatement of the same problem on the other side of the question: you've ultimately got to make a distinction between two interests that may lack a rigorous analytic distinction. That's less of a problem when you're considering the compelling interest side of the equation, as courts seem willing to make those sorts of "intuitive" distinctions between interests on that same side of it all the time.
8.2.2007 11:46pm
Brian G (mail) (www):
I agree with the commenter above that wondetred what the meaning of "homophobic" is. In my law school, "homophobia" was pretty much defined as anything less than total fealty and/or silence regarding the homosexual agenda and the belief that there should be no affirmative action for homosexuals and transgenders. I am quite sure many of the law students or lawyers who come here know exactly what I mean.

Nevertheless, to answer the Professor's query, the First Amendment should not distinguish between hostility between racists and lesbians, or at least it shouldn't. Of course, the First Amendment becomes a dead letter in the hands of a liberal judge who doesn't like the content of the speech.

Think I am making it up? Over the past few years we have had one federal circuit say a school could not prohibit a student from wearing a t-shirt that said "F*** Bush" while another said a school could prevent a student from wearing an anti-homosexual t-shirt. Now, what if a student wore a shirt that said "F*** Bush that F***ing Fa**ot?" Would the judge rule that he could wear the first part but would have to tape over the second part? Under those cases (I think one was mooted out) that would have to be the uncommonly silly result, wouldn't it?
8.2.2007 11:51pm
Reg (mail):

So if a child of your turns out to be homosexual you'd rather they be alone their entire lives than live in a long term relationship with someone of the same sex? That's a strange value system.


Why would they have to be alone? Many celibate people, gay and straight (and married!), live wonderful lives with lots of good friends. The idea that a fulfilling life depends on having sexual relationships presents a pretty shallow idea of what constitutes a fulfilling life.
8.2.2007 11:52pm
crane (mail):

I don't care that Muslims think my eating of bacon is sinful, or that atheists view my worship as irrational because I'm not a Muslim or an atheist. Why do those who disagree with devout Christians take such offense when these Christians say their Bible says homosexuality is sinful?


Neither Muslims nor atheists have much power in America. I sure there are people in both groups who would like the government to write their beliefs into the law, but it's not likely to happen. Christians are a majority of the population here, and a substantial percentage of them has been voting for politicians who explicitly promise to write Christian beliefs into the law. Where do you think the popular support for the DOMA and the various state constitutional amendments banning gay marriage came from?


I think those you are speaking of might respond that because they love the sinner they want the sinner to stop sinning.


Some Christians would also say that because they love Jews as people they want Jews to convert to Christianity, abandoning the faith that shaped their culture and made them who they are today. I don't know many Jews who respond positively to that line of argument.
8.3.2007 12:01am
Waldensian (mail):

The idea that a fulfilling life depends on having sexual relationships presents a pretty shallow idea of what constitutes a fulfilling life.

Given my luck lately, I really hope you're right about that.
8.3.2007 12:06am
crane (mail):
Reg - Most humans have what is known as a "sex drive". All else being equal, they are usually happier when they are allowed to have sexual relationships, especially the loving and long-term variety.

I'm sure I could have a happy and fulfilling life with nothing but platonic friends, but I'd prefer to have a spouse to share it with.
8.3.2007 12:12am
Lively:
A. Zarkov
If someone steals my car, I'm going dislike him enough to want him punished severely enough so he and others won't try to steal anyone's car. Hate and the desire for retribution are natural and virtually universal human emotions that serve a valuable purpose. If the state refuses to punish, then people will resort to private justice.

I never knew the guy who stole my car. The police didn't catch him.

However, I don't equate hate with justice as you do.
8.3.2007 12:15am
Cornellian (mail):
The idea that a fulfilling life depends on having sexual relationships presents a pretty shallow idea of what constitutes a fulfilling life.

So people who don't want to be celibate their whole lives are shallow?

If aspiring to a romantic relationship is shallow, I'll happily be shallow along with 99.99% of the world's population.
8.3.2007 12:19am
ShelbyC:

Over the past few years we have had one federal circuit say a school could not prohibit a student from wearing a t-shirt that said "F*** Bush" while another said a school could prevent a student from wearing an anti-homosexual t-shirt.

Maybe "F*** Bush" is an anti-homosexual t-shirt
8.3.2007 12:31am
Dan Simon (mail) (www):
It seems to me that this whole discussion is getting derailed by the emotions surrounding the issue of the morality of homosexuality. An example with less emotional baggage might help.

Let's imagine, then, that the judge had instead ruled, at the request of the parent with primary custody, that the other parent must agree not to allow or even encourage the child to watch television during visits. This is as clear a violation of the First Amendment as the actual ruling--what business is it of the state to decide whether parents can tell their children that it's okay to watch television? Yet I expect that most people aren't particularly outraged by a judicial ruling that allows the parent with primary custody to make such a decision once and for all for a particular child, and requires that the other parent respect that decision as a condition for spending time with the child. And I don't see any reason why there should be any more outrage when the parental decision is regarding the morality of homosexuality than when the decision is regarding the morality of childhood television-viewing.

Of course, some people may believe that a parent who chooses to teach his or her children the rightness/wrongness of homosexuality should never be awarded primary custody in the first place. But that's a completely different debate. Once primary custody is awarded, it seems perfectly reasonable to me for the courts to help make it stick.
8.3.2007 12:33am
Reg (mail):
Back to the question at hand, a judge should only order a parent 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" if the teaching is being done in bad faith, that is, to get back at the other parent. If the parent truly believes this, the parent should be left to teach the child as he or she wishes.

This situation is the result of giving two people with opposing interests equal say in how to raise a child. Better to choose one parent to give teh final authority over such matters. Choosing which parent should not involve judging which parents beliefs accord with the court's view of what is best. Rather, the court should look to which parent is more likely to provide the kind of atmosphere that best allows kids to thrive: stable home environment, strong family connections, ability to discipline, etc.
8.3.2007 12:46am
Randy R. (mail):
Reg: "The idea that a fulfilling life depends on having sexual relationships presents a pretty shallow idea of what constitutes a fulfilling life."

I see. So if someone told you that you must be celibate your entire life, never once have sex with another person (or yourself, for that matter, as we all know that masturbation), you would of course do so.

It's so easy to tell other people that they must be celebate to satisfy your desires, but what if I tell you that YOU must be celibate to satisfy mine?
8.3.2007 1:04am
Randy R. (mail):
Brian G: " I agree with the commenter above that wondetred what the meaning of "homophobic" is. In my law school, "homophobia" was pretty much defined as anything less than total fealty and/or silence regarding the homosexual agenda "

Well, to begin with, anyone who believes that there is a "homosexual agenda" pretty much is homophobic de jure.
8.3.2007 1:07am
John Noble (mail):
Political opposition to legal recognition of "gay rights," moral opposition to homosexual conduct, scientific rejection of a genetically determined sexual orientation, a;; "can be considered homophobic"-- and regularly are, to portray opponents as irrational.
8.3.2007 1:29am
Jay Myers:
Cornellian:

The idea that a fulfilling life depends on having
sexual relationships presents a pretty shallow idea
of what constitutes a fulfilling life.


So people who don't want to be celibate their whole lives are shallow?


If not shallow, then at least unwise. Allowing the actions of others to be a determining condition for your fulfillment or happiness is not only a ceding of your free will but also a darn good way to fill your life with sorrow. If you can't live without her, then be prepared to die at her whim.

If aspiring to a romantic relationship is shallow, I'll happily be shallow along with 99.99% of the world's population.

The unthinking need to mate is certainly what animals devote a lot of their energy to.
8.3.2007 2:23am
Randy R. (mail):
Noble: "scientific rejection of a genetically determined sexual orientation."

Actually, science is pretty much solid that sexual orientation is set sometime quite early in life, probably within at birth, but most certainly within the first few years. Whether it is genetic or not is an open question, so any opposition to 'genetically determined sexual orientation" isn't homophobic, but rather just a part of the scientific method. Although, of course, some people do have a problem with the scientific method.

Legal recognition of gay rights? Well, yet again, anyone who actually puts gay rights in quotes, as though the notion itself is a silly idea, is pretty much homophobic.

Brian and John, if you hate gays, there is no reason to be ashamed of it. Wear the label of homophobe proudly!
8.3.2007 2:26am
Jay Myers:
How could anyone claim that a judge can order a parent not to undermine the child's respect for the other parent? What would be the legal basis for that? Would it apply to couples that are still married? Judging from the media, sabotaging the ex-spouse's relationship with their children is so common as to almost be unremarkable. If that is indeed the case, then I don't see a basis for claiming that in our society a parent has an expectation of a right to an unsullied relationship with their spawn. At least not in regards to actions by other parents. It would be a very different case if it were the government doing the alienating.

I don't think the government should be intervening in how parents rear their children unless the physical well-being of the child is at risk. We have the right of conscience and the right to express our thoughts. Nowhere are those rights more important than in passing on to our children our own values and ideas. The parental relationship is even more special than the spousal relationship and government has no right to interfere with the indoctrination of one's own children. Government gets its own chance at indoctrination after all.

I suppose we need government intervention in custody disputes in order to keep them from getting even more out of control but I think the practice is toxic to our legal system. Our current standard is "the best interests of the child" and that necessarily involves normative judgments about the beliefs and lifestyles of the parents. That means our legal system is having to take sides about things that would be best left alone.
8.3.2007 2:43am
Daniel Chapman (mail):
I wish more people would... the word gets tossed around so freely it's already almost meaningless.
8.3.2007 2:44am
Kovarsky (mail):
this conversation is so silly. everybody knows that whether you're gay depends on whether you listen to rufus wainwright.
8.3.2007 2:46am
Jay Myers:
Randy R.:

Legal recognition of gay rights? Well, yet again, anyone who actually puts gay rights in quotes, as though the notion itself is a silly idea, is pretty much homophobic.

It must feel nice to briskly label a whole group of people like that, but what about those who oppose special rights for any group because they think the constitution requires the government to treat all people equally and grant them the same exact rights? Am I a homophobe if I believe that it violates the Equal Protection Clause for A to have rights that B doesn't, regardless of the justification for those rights?

Brian and John, if you hate gays, there is no reason to be ashamed of it. Wear the label of homophobe proudly!

Wouldn't that be incorrect terminology since they aren't pathologically afraid of gays? I've never seen an arachnophobe, for example, engage in "spider-bashing".

Besides, even if they did "hate" members of a certain class, that does not necessarily entail that they "hate" them for the trait that makes them a member of that class. Perhaps they simply dislike someone dictating to them behaviors of which they must approve? Nothing makes a human being desire to do something as much as being told that they cannot.
8.3.2007 3:03am
JunkYardLawDog (mail):
Jay Myers, well put. Randy R's comments (if serious, I'm not sure if he might not have been joking because they so obviously prove the point that the term homophobic has no set rationally and objectively determinable meaning in common usage)show that homophobic is merely a method of making an ad hominem attack upon someone without resorting to more commonly used school yard invective. Its merely a method for avoiding having to deal with an opponents arguments by falsely labeling all who don't agree as irrationally afraid of homosexuals.

There may be somebody out there somewhere with an irrational fear that a homosexual is plotting to bugger them against their will, but I haven't ever met such a person. There are plenty of people without such fears and therefore NOT homophobic who disapprove of the pro-homo crowds agenda of wanting to rub their sexual deviance from the norm in our faces and require us under penalty of law to express views and engage in behavior designed to discriminate in favor of their sexual deviance from the norm and to outwardly show through legally required speech, thought, and conduct that their sexual deviance from the norm is all goodness and light.

The term homophobic has no meaning any more than the terms butaphobic or vaginaphobic or anal obsession have meaning in these matters.

Says the "Dog"
8.3.2007 8:09am
Mr. Bingley (www):

I don't think the government should be intervening in how parents rear their children unless the physical well-being of the child is at risk. We have the right of conscience and the right to express our thoughts.


Damn straight.

The judge is way out of line.
8.3.2007 8:17am
Extraneus (mail):
I've never seen an arachnophobe, for example, engage in "spider-bashing".

Bingo!

Same for Islamophobes, who should be cowering in their basements rather than taking on those who label them thusly.

But speaking of Islam, any judge who required a parent 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" would need to declare all practicing Muslims as unfit parents, wouldn't they?
8.3.2007 8:28am
markm (mail):
In considering issues like this, remember that the judge is probably getting information on the home environment and taking advice about what is best for the child from social workers at Child Protective Services - that is, from graduates of a college program of "liberal" indoctrination. They'll probably regard a fundamentalist christian who believes in spanking children and that homosexuals are going to hell with just as much horror as most people would view the pagan sadomasochist mother. Some judges will laugh their arguments out of court, but others might follow their recommendations unthinkingly. Do you really want to give those judges the power to make arbitrary decisions about how children are raised?

And as various others have pointed out before, if you judge "normal" by the numbers of people following a faith, the most numerous are those who go to an institution with a history of sheltering pedophiles for a magical cannibalistic ritual.
8.3.2007 9:45am
Ken Arromdee:
Let's imagine, then, that the judge had instead ruled, at the request of the parent with primary custody, that the other parent must agree not to allow or even encourage the child to watch television during visits

I think that banning television would not raise the same kind of First Amendment issues because it's only a ban on form, not content; the other parent can still teach anything he wants.

I can think of some (perhaps contrived) scenarios where a ban on television is a ban on content; for instance, the parents live in an all-white neighborhood, and one parent says that if the other parent lets the kid watch television he'll see images of interracial couples which he'll see nowhere else, and he doesn't want his kid getting the wrong ideas about the races. The parent would be out of line requesting a no-television rule in this situation.
8.3.2007 9:57am
Daniel San:
markm: Do you really want to give those judges the power to make arbitrary decisions about how children are raised?

This is the reality of a custody case. A judge with limited familiarity with the situation is going to make a decision concerning custody. In most states, one of the factors to consider is the appropriate moral education of the child. It is pretty typical in these cases to order (in general terms) that neither parent is to insult or disparage the other parent in front of the child.

This always has First Amendment implications (although we usually don't notice that. Unfortunately, courts have to make these decisions and it isn't rational to allocate child custody without considering moral training. EV's somewhat extreme example is a natural extension of typical family law principles. (For anyone seriously interested in these issues, the article is well worth reading.)
8.3.2007 10:21am
Paddy O. (mail):
If Ms. Clark's ex decided that she wasn't lesbian anymore and wanted to have sex with men, though didn't want to marry said men, Ms. Clark could teach her daughter traditional Christian beliefs on that?

Traditional Christian beliefs don't just say homosexual sex is wrong. They say all sex outside of marriage, and strongly suggest that being celibate is a "higher" calling. Which other religions tend to agree with.

However, making this issue a primary form of a religion isn't right either. Ms. Clark could easily turn this issue into a way of poisoning her daughter's relationship with the other woman. Some people really do hate homosexuals, not just disagree with the lifestyle.

The judge needed to define homophobia. If it means don't obsess on the issue, great. If he means Ms. Clark could share her disapproval about her ex's hair color, decorations, car, exercise habits, but not her sexuality that seems immensely intrusive and dismissive of Ms. Clark's constitutional rights.
8.3.2007 10:45am
just watching666 (mail):
apologies for being off topic, but Jake D, have you posted as "Charles" on balkinization? just curious. thanks
8.3.2007 10:46am
Wallace:

1. Should a judge be free to order a parent 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"? Should the judge be allowed to so order only after a specific finding that without the restriction, "the child's emotional development [would be] significantly impaired"?


The issues of Christian doctrinalism, homophobia or homophilia are all red herrings.

The real issue here is that one authority figure in a child's life risks impairing the emotional development of the child by talking trash about the other authority figures in the child's life. There seems a clear inference that whenever Christian mom was talking about homosexuality she was making thinly veiled slights toward Lesbian mom.

It's a shame the judge had to be so explicit in explaining exactly what the one mother was doing wrong but apparently Chirstian mom wasn't getting the message by watching "Supernanny."
8.3.2007 10:47am
New World Dan (www):
There is a need to teach children that reasonable people can disagree about what is right and wrong. I believe this, but your mother belives that, and when you're old enough you can decide what you believe.

Parenting is a joint task and if you undermine your co-parent, the child will have zero respect for either parent as an authority figure. It's not that complicated.

Wallace is right as regards to "Supernanny." Watching the Nanny in action a while back, my wife asked, "Do people seriously need to be told this?" Sadly, yes they do. My wife is much smarter and a better parent than the vast majority of people out there, and knowing her flaws as a parent, that's really depressing.
8.3.2007 11:12am
Randy R. (mail):
Jay: " but what about those who oppose special rights for any group because they think the constitution requires the government to treat all people equally and grant them the same exact rights? "

I concede that gays should not ask for any special rights. But please identify one single right that gays are requesting that straight people don't already have.

"Perhaps they simply dislike someone dictating to them behaviors of which they must approve? "

No one is asking for your approval. You may disapprove of gays as much as you like. But it isn't a question of approval, but rather rights. You needn't approve of blacks, or asians, or women, or gays, but we all exist, and we all deserve the same rights to employment, housing, serve in the military, and marry. With the first three, about 70% of Americans agree, and with the last, 60% support either marriage or civil unions. So the majority of Americans already approve of basic and equal rights for gays. If you wish to be out of the mainstream, I don't really care.

But, hey, like I said, your are entitled to your opinions, if you don't like gays, at least be honest enought to admit it. I'm a little tired of people who try to say, well if gays just didn't try to so hard to get their rights I would be all in favor of them.
8.3.2007 11:21am
Brett Gardner (mail):
This cannot be right. Parents are free to teach anything they want, no matter how immoral, disgusting or illegal. It's when they act upon those beliefs that we have a problem. I'm sorry, but that's an area that the original understanding cannot sustain. Government cannot police minds, but those actions that result are within the realm.

I can't believe, though, that such vague concepts such as possible emotional harm are concrete enough to sustain regulation.
8.3.2007 11:22am
Waldensian (mail):

My wife is much smarter and a better parent than the vast majority of people out there, and knowing her flaws as a parent, that's really depressing.

You can't just leave us hanging like that. Do tell.
8.3.2007 11:23am
Hans Bader (mail):
It's interesting that the ex-partner who never even adopted the child was given joint custody, while ex-husbands who actually fathered a child typically aren't given joint custody, even when they played a very active role in raising the child.

For all the talk about homophobia, gay parents often seem to get treated better than heterosexual males in divorces and break-ups. Gender bias is a bigger factor than sexual orientation bias, even in states with DOMAs.

Treating someone who never even adopted the child as a parent is a double-edged sword, since the same "psychological parent" doctrine could be used to impose child-support obligations on the "psychological parent" even if she is NOT given joint custody, the way fathers without joint custody are often ordered to pay even more in child support than if they received joint custody.

It also opens the door to double-dipping by the birth mother, who can demand child support from multiple other people, including both the natural father (as happened in a Pennsylvania case) and the lesbian "psychological" parent, and as a result possibly receive an added financial incentive to break-up the relationship knowing that her living expenses will be paid for by double-dipping child-support (in most jurisdictions, nothing in the law of child-support requires proof that the amount awarded is used solely for the child's benefit, as opposed to general household costs).
8.3.2007 11:32am
Alan K. Henderson (mail) (www):
The real issue here is that one authority figure in a child's life risks impairing the emotional development of the child by talking trash about the other authority figures in the child's life. There seems a clear inference that whenever Christian mom was talking about homosexuality she was making thinly veiled slights toward Lesbian mom.
There is a difference between talking trash and engaging in constructive criticism.

If Coughlin's ruling had remained intact, it would have been morbidly fascinating to see how far plaintiffs would carry the precedent for barring a legal guardian from teaching a child that X activity is wrong if the noncustodial parent happens to engage in X activity.
8.3.2007 11:33am
Herschel Smith (mail) (www):
This is simpler than it is being made out to be. The ending words of the post are telling. You discuss "hostility to lesbians" being morally wrong.

Only in the Unites States of the offended would teaching that something is morally wrong even come close to being compared to "hostility." Moral functional judgments are made every day on all sorts of things. The assertions that 'this behavior is wrong' or 'that behavior is right' have positive truth value or they don't. A completely unemotional and detached person can make assertions like these. Hostility has nothing to do with it, and invoking the term and idea muddles the issue.

No branch can prohibit the free practice of religion, and that includes teaching about issues of morality. And ... I'll bet that when (not if) this or something analogous to it gets appealed to the SCOTUS, that is exactly what the SCOTUS will decide.
8.3.2007 11:45am
JohnEMack (mail):
The problem with permitting an inquiry into parental indoctrination under the pretext that it could cause "emotional impairment" is that (1) "emotional impairment" is potential so broad and vague as to permit virtually any kind of inquiry into parenting and (2) if that phrase is properly limited to demonstrable psychological harm, it does not get at what might legitimately interest a court.

Suppose one could show that a parent was raising a child to become a radical Islamist. One could probably argue that the emotional well-being of such a person is somehow impaired. But the real concerns are (1) that the child may be being brought up to become a terrorist or a suicide bomber; and (2) that the child is being brought up to become a pariah. Certainly society has an interest in preventing the production of terrorists and suicide bombers, quite apart from its concern for the well-being of the child. Reynolds v. U.S. gives some ammunition to jurists and legislators who would base custody decisions on such considerations. But of course the real danger is a slippery-slope one. If the court can interfere to prevent the making of a suicide bomber, why can't it interfere to prevent the making of a homophobe?

The first part of the answer seems to me to be explicit about what courts and legislatures are doing. Courts should be able to explicitly consider that certain sorts of upbringings pose a danger to society. Then very tight and explicit restrictions need to be placed on what such dangers are. Disagreements on doctrine and values should not be defined as "dangers. Indoctrination as to accecptable actions, on the other hand, should be the subject of narrowly-focused judicial inquiry. Then at least we can have a rational debate over what sort of child indoctrination regimes are tolerable and which are not. But to hide the issue under the rubric of "emotional impairment" simply permits subjective judgments about the issue to remain "underground," and hence arbitrary.
8.3.2007 11:47am
Wallace:

There is a difference between talking trash and engaging in constructive criticism.


I agree. That's why I wrote that there is an inference that what Christian mom was doing was not constructive criticism, but talking trash. It seems unrealistic that mom was just explaining to her kid the Christian concept of procreative and unitive love being the highest expression of God's love for us. It seems more likely
8.3.2007 11:52am
jhp (mail):
The morality of the state should always be dictated by the people. Never the other way around.
8.3.2007 12:01pm
Hoosier:
When it comes to politcal realities, two facts I'd metion: (1)The Church (Roman Catholic for those who didn't notice the definite article) teaches that homosexuality is an "obejectively disordered" state; (2)Almost 1 in 4 Americans is Catholic.

(And there might be a Catholic or two on the Supreme Court, if memory serves.)

I can't see this sort of ruling spreading through the nation.
8.3.2007 12:13pm
Dan Simon (mail) (www):
I think that banning television would not raise the same kind of First Amendment issues because it's only a ban on form, not content; the other parent can still teach anything he wants.

That's why I specifically included a ban on encouraging the child to watch television (say, at a friend's house).

I can think of some (perhaps contrived) scenarios where a ban on television is a ban on content; for instance, the parents live in an all-white neighborhood, and one parent says that if the other parent lets the kid watch television he'll see images of interracial couples which he'll see nowhere else, and he doesn't want his kid getting the wrong ideas about the races.

You're once again introducing the distraction of a hot-button issue. It seems that nobody wants to discuss the hypothetical case where the issue is something, such as, "should children watch television?", that doesn't arouse much passion. That suggests to me that nobody is seriously opposed to primary-custody parents' being allowed to demand conformity to their childrearing principles. Rather, many people think certain childrearing principles are so odious that no parents should ever enforce them even in their own homes, and this belief simply carries over into the unrelated question of whether the courts should extend the primary-custody parent's principles into the other parent's home.
8.3.2007 12:13pm
Cornellian (mail):
When it comes to politcal realities, two facts I'd metion: (1)The Church (Roman Catholic for those who didn't notice the definite article) teaches that homosexuality is an "obejectively disordered" state; (2)Almost 1 in 4 Americans is Catholic.

The Church has committed any number of egregious blunders over the centuries that they now either never mention, or back away from or apologize for, and this will someday be just another addition to a very long list.

And as for political reality, The Church also teaches that birth control is immoral but I don't see a groundswell of support for banning it. The sentiments of a particular Pope don't necessarily reflect the sentiments of Catholics as a whole. Heck, Spain is virtually 100% Catholic yet the population there supported legislating recognition of same sex marriages despite the usual fire and brimstone speeches from The Church.
8.3.2007 12:25pm
Mark Field (mail):

apologies for being off topic, but Jake D, have you posted as "Charles" on balkinization? just curious. thanks


I'm sure it makes me an unfit parent somehow, but I broke out laughing when I read this.
8.3.2007 12:27pm
Quiet:
How can it be psychologically beneficial to a child for a judge to give joint custody to two people who have a strong fundamental disagreement? I cannot see how the damage to a child in this situation is not worse than any damage they might get from severing a parental (or parental-like) long term relationship. It does not matter if the two adults are lesbian vs. fundamental Christian, Hindu vs. Muslim, or Denver Bronco fan vs. Oakland Raider fan. If the two adults cannot tolerate each other then the child cannot benefit from being a rope in a tug-of-war.
8.3.2007 12:42pm
Hoosier:
Cornellian--

"And as for political reality, The Church also teaches that birth control is immoral but I don't see a groundswell of support for banning it." Yes, American Catholics like to have their Catholicism AND their right to privacy in decisions of an 'intimate' nature. So perhaps 80% of married RC couples practice BC. I don't tend to trust polls on this sort of question, but that number does strike me, anecdotally, as in the ballpark.

But I would suggest that your evidence reinforces my point: In this case, Church teaching reinforces the proclivities that lead Catholics to practice BC. What is more private a matter than the decision about what to teach your children about right and wrong? I feel safe in saying that the NCCB and the majority of parishoners at Our Lady of Hungary Church would be incensed if such a decision were handed down in a case involving Catholics.

You other comments are OT, though if you have a /magesterial teaching/ that she has "back away from or apologize for" I'd like to hear. (The web doesn't do connotation well, and I don't use emoticons. But this is really just a question of curiousity. I'm not seeking to be confrontational.)
8.3.2007 1:00pm
paul (mail):
The question that I would have is how can a judge reasonably enforce an order regarding what a child is taught and what sanctions will he apply if the order is violated? I have seen cases where very clear and straightforward orders such of those involving visitation rights become highly contested trials with each side giving different factual accounts as to whether and/or why a visitation order was violated. It is hard for me to imagine that a trial regarding what a child is taught would not quickly become a quagmire. Is enforcing such an order an appropriate use of judicial resources given other pressing challenges that family courts address? And in the end, is the judge going to put a parent in jail for teaching a child that homosexuality is a sin?
In my view Judges should decide who should have custody and then rely upon the person awarded custody to make judgments regarding the myriad of day-to-day issues concerning how the child is raised. If the person cannot be trusted to make appropriate judgments regarding child rearing, then he or she should not be awarded custody. Judges have no business micro-managing how parents do their jobs.
8.3.2007 1:04pm
JosephSlater (mail):
I once again admire Randy R. for patiently wading through the anti-gay/lesbian posts.

Morevoer, like Waldensian, I was struck by New World Dan's quote: My wife is much smarter and a better parent than the vast majority of people out there, and knowing her flaws as a parent, that's really depressing.

Does your wife read this blog? Because if I had written something about my wife's "flaws as a parent" on a blog, and she had come across it, I would likely soon be learining about how custody was decided in my own case as a result.
8.3.2007 1:12pm
JBL:
1. Should a judge be free to order a parent 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"? Should the judge be allowed to so order only after a specific finding that without the restriction, "the child's emotional development [would be] significantly impaired"?

If the judge is going to impose a legal requirement 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", then that implies a clear legal standard for defining "anything that could be considered homophobic". This thread touches on a few of the difficulties involved in such a determination.

The determination that a particular teaching (on any subject) would significantly impair the child's emotional development is a somewhat different question but it runs in to many of the same issues.

2. If your rationale is that the judge can and should order a parent not to teach things that could undermine the child's respect for the other parent, say that Clark's ex was a racist. Should the judge have been allowed to order the child to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be consider racist-phobic"?

The cases are distinguishable. Homosexuality is a belief about oneself; racism is a belief about other people. There is a quantitative difference between arguing that you should not act on your beliefs about yourself and arguing that you should not act on your beliefs about others, especially when the relevant actions towards yourself are probably legal and the actions towards others potentially aren't.

In addition, if a racist says "black people are inherently inferior," there is a general scientific and popular consensus that the statement is not true in any significant sense. If a homosexual says "I am attracted to people of the same sex," not many people would respond "No you aren't."

A different analog:

A white couple has a child. They divorce, in part because the mother does not approve of the father's racist views. The mother is granted custody, and later marries a black man, who adopts the child, and is therefore explicitly an authority figure in the child's life. Could the judge order the biological father not to teach the child any racist beliefs?

As in the answer to question 1, the difficulty is not in determing that such teachings would have an impact on the child, and it might not even be in determing that the impact would probably be harmful. The difficulty is in coming up with a consistent legal rule.

I could probably argue that given all the complexities of the situation and the involvement of a minor, such a ruling would not necessarily violate the First Amendment. But if I were a judge I would be extremely reluctant to do so.
8.3.2007 1:22pm
Brian G (mail) (www):
Randy R,

You said:


Well, to begin with, anyone who believes that there is a "homosexual agenda" pretty much is homophobic de jure.


Thank you for proving my original point with that and automatically accusing me of hating gays. That

And, no I don't hate gays. I was quite popular amongst some of them in law school because I told them to their face I was against gay marriage. One said he knew many people said one thing to his face while saying another behind their back, and liked me because he knew I wasn't. It was many of the heterosexuals who jumped all over me for not bowing down to the homosexual agenda. And, oh yeah, there is one. Denial is silly.

And I studied together with a lesbian for many hours for the bar exam while my wife watched her daughter that she had with another woman! Oh, the humanity!!

Funny how being honest with people gains you respect.
8.3.2007 1:35pm
Hoosier:
I lived with two gay colleagues in grad school. One of them had a really good riff on the "Gay Agenda." All the stuff that would be different if the Gay Agenda were implemented. I wish I'd written it down before I forgot.
The other guy, when verbally attacked by a rather intolerant fellow grad student (for his participation in the male hegemony) responded: "I guess phallocracy isn't as fun as it sounds." (Rimshot)

But RANDY: My bunkies shared the TRUTH with me. There IS a SECRET GAY AGENDA. It's all written down in the "Protocols of the Elders of Judy." Surprised you don't have a copy.
8.3.2007 1:45pm
Hoosier:
"And I studied together with a lesbian for many hours for the bar exam while my wife watched her daughter that she had with another woman!"

I think I saw that movie on 'Showtime'late one night. But don't tell my wife.
8.3.2007 1:51pm
Matt S.:
(Off topic)

I wonder if any similar cases were seen prior to 1973 when Homosexuality itself was considered by the APA as a mental disorder?

Sorry if said before--I tried to read all the previous comments.
8.3.2007 1:56pm
paul (mail):
Wallace said:
"It's a shame the judge had to be so explicit in explaining exactly what the one mother was doing wrong but apparently Chirstian mom wasn't getting the message by watching "Supernanny.""

I think it is important to understand that the judge did not issue a booklet of parenting suggestions. He issued a court order that requires judicial resources to enforce and can lead to imprisonmnent if violated.
In my view, Judges should be very careful about what they order. In households across the United States there are countless bad parents. That does not mean that the government should intervene and issue order punishable by contempt to impose a Judge's view, however enlightened, of how good parents should act.
8.3.2007 2:00pm
Randy R. (mail):
Hershel: 'Only in the Unites States of the offended would teaching that something is morally wrong even come close to being compared to "hostility."

Except that being gay isn't a moral issue, any more than being left-handed is a moral issue. Some people are gay, and some are not. Lying about one's sexual orientation, which many gays do in order to evade discrimination, is, in my opinion, immoral. But just being gay, or having sex with another person of the same gender isn't any immoral than having sex with a person of the opposite gender.

Your religion may teach otherwise, but there are plenty of religions that don't.

Brian: "Funny how being honest with people gains you respect."

Very true. If you don't hate gay, my apologies. I've said on these posts that if people don't like gays because they just have a gut feeling ickiness against gays, I have no problem with that, and I view that as far more honest than people who try to justify their dislike by buying into rightwing nonsense about how we have sex, with whom, and what our goals are.

However, whenever anyone talks seriously about a Homosexual Agenda, that sends off red flags, because no such agenda exists except in the minds of wingnuts who hate gays. We have goals about ending discrimination, such as ENDA and DADT and marriage, but that's about it.

And I haven't seen anyone at any time actually find any special rights that we are looking for that striaght people don't already have.

Except the right to be absolutely fabulous!
8.3.2007 2:21pm
MartinEd (mail):
"Homophobic" is one of those made up words which is meant to be used by homosexuals or homosexual advocates as a bludgeon to silence anything construed as criticism. Here, to say, "I never liked any of Liberace's performances" would be called homophobic by some one who loved all of Liberace's work.
There words are what they are and can not be attacked. How those words are characterized is in the mind of the listener/reader and that perception can't be weighed in assessing one's right to use those words.
8.3.2007 2:41pm
Randy R. (mail):
"I wonder if any similar cases were seen prior to 1973 when Homosexuality itself was considered by the APA as a mental disorder?"

Prior to 1973, it was quite rare for a gay person to be married, have children, then get divorced and announce that he or she is gay or lesbian. And if they did, it would almost certainly mean custody for the non-gay parent.

The reason is back then, many more gay people got married and hid their sexuality from everyone, including their spouse. That only made things much worse, of course.

Part of the reason this gets my interest is that we have many people, like Hershel, who view gays as immoral. Others want to just discriminate against gays. Some simply hate us just for being gay. What this does is drive young gay people into marriage because they think it will somehow cure them, or that this is a phase, or they want to please their parents and family, or other social pressures.

Now, we gays being much more accepted, many people who were trapped in these loveless marriages are getting out of them, and so that's why there is a lot of this going on. And the situation can be very traumatic for the spouse who was lied to all this time. I know many gay men who are middle aged or older who have kids, and when they finally came out, it was a horrible experience for all, especially if there were kids involved. (Others did work out fine, though).

Therefore, I look forward to the day when there is no stigma to being gay, and so young gay people will feel no pressure to get married to an opposite sex person in the first place. Then we will see less and less of these types of cases.

I see no reason for a gay person to lie to himself or to others, ruin the lives of their spouses, clog the courts with these no-win situations, and disrupt their kids lives, merely to satisfy the desires of one particular religion, or people like Hershel.
8.3.2007 2:41pm
Randy R. (mail):
Martin: ""Homophobic" is one of those made up words which is meant to be used by homosexuals or homosexual advocates as a bludgeon to silence anything construed as criticism."

Perhaps. But then, you must agree that words such as 'immoral' and 'deviant' are words that are meant to be used by heterosexuals as a bludgeon to silence any call for respect or rights for gays. Example: Hershel stated that only in America can something immoral even be treated with respect in the courts. His use of the word immoral is clearly used as though it's a given, and no further debate is necessary.

"I never liked any of Liberace's performances" would be called homophobic by some one who loved all of Liberace's work.

Hey, I NEVER liked Liberace's performances because I was classically trained as pianist, and I cringed whenever I saw him on tv. So I think you are taking the victim card a little too far.
8.3.2007 2:46pm
JosephSlater (mail):
"Homophobic" is one of those made up words. . .

As opposed to all those other words that were There At The Beginning of Time?
8.3.2007 3:11pm
Hoosier:
RANDY--Well, I can't speak for all straight people. But I think you are already excercizing the "Right to be Fabulous."

But I'm conservative when it comes to meaning of legal text. So you DO NOT have an implied right to be "Faboo."
No matter WHAT Brennan wrote.
8.3.2007 3:11pm
Hoosier:
"As opposed to all those other words that were There At The Beginning of Time?" I laughed out loud at that, my brother.

But I think there is a distinction between words that evolve organically and words that are introduced at a specific point in time for a specific purpose. This doesn't meake the latter illegitimate (I'm OK with "software." And "assclown.") But I suppose one can make the argument that they are invented.
8.3.2007 3:14pm
Gekkobear (mail):
"evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding."

Ok, Wearing a Burqa and being treated as property or a second class citizen, unable to drive, etc. is reasonably likely to cause present or future harm to the child, right?

So take all female children away from Muslims who practice this way. Or did I miss a step here?

" reasonably likely to cause present or future harm to the child" ... Christian Scientists, you don't get to keep your kids either. Medicine is proven better than prayer, you lose. All your kids are now wards of the state.

Heck, we can take loads of kids away from their parents. This is just going to be fun... What to do with all teh kids though.
8.3.2007 3:29pm
JosephSlater (mail):
Hoosier:

"Homophobic" arose as organically as any other word, as far as I can tell, in response to the increasing sense in society that opposition to gays/lesbians was wrong, or at least was not a universal found truth. Having said that, I think those who say that "phobic" isn't really the right suffix have a point. If there was a gay agenda, and if I could vote on it (as a hetero auxilliary member), I might have gone for "heterosexist" or something else. But it's not like there really was a cabal having a vote somewhere.
8.3.2007 3:38pm
JosephSlater (mail):
Hoosier:

P.S. Are Historians allowed to use the word "assclown"?
8.3.2007 3:39pm
Hoosier:
Joseph: I have heard 'heterosexist,' and I think it's a much better word. You don't have to be hostile to gays to know that the '-phobic' suffix is an attempt at intellectual bullying.

"P.S. Are Historians allowed to use the word "assclown"?"
'Allowed'? Can't say: I'm not one of The Gatekeepers. But I find myself using it almost every day. Except days when I'm not on campus. Funny thing, huh?
8.3.2007 3:47pm
Jay Myers:
Randy R.:

I concede that gays should not ask for any special rights. But please identify one single right that gays are requesting that straight people don't already have.

No one is asking for your approval. You may disapprove of gays as much as you like. But it isn't a question of approval, but rather rights. You needn't approve of blacks, or asians, or women, or gays, but we all exist, and we all deserve the same rights to employment, housing, serve in the military, and marry.

You only have a right to employment if someone agrees to employ you just as you only have a right to marry if someone agrees to marry you. If you can prove otherwise then you can be my best man when I wed Jessica Alba. Your "right" to housing is similarly restricted. I can't go into vacant, for-sale house and simply take up residence. I must get the owner to agree to my habitation somehow. So why should someone have a right to force an owner to sell or rent to them? No matter what my opinion of the reason for the owner's reluctance, it is their property to do with as they will. Finally, serving in the military is not in any way a right. It is a duty but it has never been a duty shared by everyone.

With the first three, about 70% of Americans agree, and with the last, 60% support either marriage or civil unions. So the majority of Americans already approve of basic and equal rights for gays. If you wish to be out of the mainstream, I don't really care.

I don't really care who believes what. None of those items meet Justice Holmes' criteria to be recognized as pre-existing rights under the constitution as currently written so unless and until you actually go through the motions of amending the constitution they are not constitutional rights. Besides, I certainly don't have any of those "rights" as you would apply them to homosexuals. Can I be fired or not hired because I am white, male, or heterosexual? Sure. Can I be refused housing because of the same? Probably. Can I marry anyone I want? No. My best (male) friend or my sister are both prohibited from marrying me. That would be the case even if the marriage was strictly for the benefits and no sex would be involved. The military certainly isn't going to take me because I don't meet their criteria for what makes an effective member of the armed forces.

But, hey, like I said, your are entitled to your opinions, if you don't like gays, at least be honest enought to admit it. I'm a little tired of people who try to say, well if gays just didn't try to so hard to get their rights I would be all in favor of them.

But I do like homosexuals. My friends who happen to be homosexuals are open about their lifestyles, they just don't go on at length about being part of an oppressed minority and that minority needing special rights. They may believe that, but because our conversations don't revolve around it, we can treat one another as individuals.

Except that being gay isn't a moral issue, any more than being left-handed is a moral issue. Some people are gay, and some are not.

You are conflating being attracted to members of the same sex with engaging in sex with members of the same sex. *Being* anything is not a moral issue but how you act can be. It isn't a moral issue if I am greedy and rapacious but it becomes a moral issue if I steal or cheat in order to satisfy my nature. You can argue that the act of having sex with members of the same sex isn't immoral but that wasn't what you were doing there.

Lying about one's sexual orientation, which many gays do in order to evade discrimination, is, in my opinion, immoral. But just being gay, or having sex with another person of the same gender isn't any immoral than having sex with a person of the opposite gender.

I agree with that but you have to remember that many people also think that heterosexual fornication is immoral.

Your religion may teach otherwise, but there are plenty of religions that don't.

As an example, the Old Testament only condemns being the 'bottom' in a male homosexual act. Being the 'top' seems to be okay by god. Lesbian sex is also not prohibited if I remember correctly. As long as a woman avoids sex with animals or adultery then she has nothing to worry about.

However, whenever anyone talks seriously about a Homosexual Agenda, that sends off red flags, because no such agenda exists except in the minds of wingnuts who hate gays. We have goals about ending discrimination, such as ENDA and DADT and marriage, but that's about it.

No agenda exists except for the agenda you go on to explicitly state? Has it occurred to you that those things may be what the person in question is referring to?

And I haven't seen anyone at any time actually find any special rights that we are looking for that striaght people don't already have.

While I admit that some heterosexual people do have the statutory right not to be the victim of 'hate crimes', that does not accrue to them because of their status as heterosexuals and does not apply to 'hate crimes' committed against them specifically because of their sexual orientation.
8.3.2007 3:50pm
JosephSlater (mail):
Can I be fired or not hired because I am white, male, or heterosexual? Sure.

Well, actually, no, no, and in some cases no. Title VII forbids firing people because of their gender and because of their race, so it protects whites qua whites and males qua males. Various states and localities that have passed laws barring discrmination on the basis of sexual orientation protect heterosexuals as well as homosexuals.
8.3.2007 4:07pm
PubliusFL:
As others have pointed out, "nothing . . . that can be considered homophobic" (emphasis added) is unworkably vague. Since people have seriously advanced arguments that Christianity itself or entities as large as the Roman Catholic Church are inherently homophobic, obviously the judge's phrasing gives no guidance to the parent about what is permissible or impermissible. So the court would have to go into more detail. And do we really need litigation in civil courts about the correct exegesis of Leviticus 18, Romans 1, and 1 Corinthians 16?
8.3.2007 4:20pm
ed (mail) (www):
Hmmm.

Does it strike anybody else that these judges have way too much power?
8.3.2007 5:27pm
Daniel San:
Gekkobear: Heck, we can take loads of kids away from their parents.

Can you suggest any way that a court can resolve a custody fight without taking a child away from a parent?
8.3.2007 5:39pm
Jay Myers:
JosephSlater (mail):

Can I be fired or not hired because I am white, male, or heterosexual? Sure.

Well, actually, no, no, and in some cases no. Title VII forbids firing people because of their gender and because of their race, so it protects whites qua whites and males qua males.

Some would disagree with you.

"Civil rights laws were not passed to protect the rights of white men and do not apply to them."
Mary Frances Berry, Head of U.S. Commission on Civil Rights. [Civil Rights Under Reagan, San Francisco, ICS Press, 1991, p. 141.]
8.3.2007 5:48pm
Brian G (mail) (www):
Hoosier,

I saw the same movie. It was on Skinemax actually!
8.3.2007 6:04pm
Randy R. (mail):
"You only have a right to employment if someone agrees to employ you just as you only have a right to marry if someone agrees to marry you."

Exactly. That's all we are asking for too. If I don't get a job, it should be based on my lack of qualifications, not because of my sexual orientation. You can't deny people a job based on age, sex, pregnancy status, race, religion, and so on. We simply want sexual orientation to be one of those as well.

" Your "right" to housing is similarly restricted. I can't go into vacant, for-sale house and simply take up residence. I must get the owner to agree to my habitation somehow."

Exactly. Same thing for gays and straights. See above.

"So why should someone have a right to force an owner to sell or rent to them? No matter what my opinion of the reason for the owner's reluctance, it is their property to do with as they will."

No it isn't. You can't deny housing to a person simply because they he or she is black, female, Jewish, pregnant, and so on. We ask only that sexual orientation be included.

"Finally, serving in the military is not in any way a right. It is a duty but it has never been a duty shared by everyone."

Not so. Up until the 1950s, blacks could not serve in an integrated military. If there is a reason why any particular person is not fit for the military, that is correct, they have no right to serve. but once determined fit, there is no reason to deny them the right to serve. And the military's official position is that gays are indeed perfectly fit to serve in the military. The SOLE reason for not allowing gays to serve *openly* is that other people, the straight ones, might have a problem with it. But as for gays, there is no question that they can and do serve honorably and well.

"Can I be fired or not hired because I am white, male, or heterosexual? Sure. Can I be refused housing because of the same? Probably."

Perhaps, but then you would have a good lawsuit against them, and if proved in a court of law, then you would get the job or the housing. And furthermore, I haven't heard of a single case is which a straight man or woman was ever fired once the boss found out he or she was straight. However, there are plenty of cases of gay people being fired simply because the boss found out. That's the difference. And we do not have such employment or housing protections in over 30 states.

"You can argue that the act of having sex with members of the same sex isn't immoral but that wasn't what you were doing there."

Well, yes, of course. That is exactly what I am arguing here.
8.3.2007 6:05pm
Randy R. (mail):
Jay" you only have a right to marry if someone agrees to marry you."

True again. Except that when I find someone who agrees to marry me, I cannot, unless I live in Massachusetts ( which I don't). When you find a person who agrees to marry you, you can get married in any state.

So, no, we do not have the same rights as you. And again, I ask how any of these are 'special rights' that you don't already have.

As for morality, lefthandedness was considered immoral for centuries (hence the word 'sinister'). What morality has to do with how with which hand you write escapes me. Just as it escapes me how having consensual sexual relations with a man above the age of consent is a moral issue.

And if the immorality is that it is sex outside of marriage, then we should be at least allowed to marry so that we can have sex that would make everyone else happy.
8.3.2007 6:10pm
Randy R. (mail):
I should note that the proposed ENDA in congress would exempt small business and religious based companies, and also landlords who have five or less units.

So if you are small businessman, you would still be free to discriminate against gays just because.
8.3.2007 6:14pm
JosephSlater (mail):
Jay Myers:

I don't know that quote, but even assuming it's true, it's clearly not the law anywhere in the U.S. And yes, white men win Title VII suits in the real world.

The point, of course, being that the original claim about "special rights" for gays was premised on a complete misunderstanding of the law.
8.3.2007 6:14pm
Cornellian (mail):
As for morality, lefthandedness was considered immoral for centuries (hence the word 'sinister'). What morality has to do with how with which hand you write escapes me.

Most people are right handed, therefore the assumption was that being left handed was not just uncommon, it had to be "abnormal" or wrong in some way. The "different = wrong" assumption is very common, even today. Just reading this thread illustrates that.
8.3.2007 7:38pm
PubliusFL:
"And if the immorality is that it is sex outside of marriage, then we should be at least allowed to marry so that we can have sex that would make everyone else happy."

But from the perspective of those who believe that the immorality arises from the fact that it is sex outside of marriage, "marriage" means a monogamous heterosexual union. So allowing homosexuals to marry wouldn't do them much good. And from that perspective, calling a union of homosexuals "marriage" is no less of a sophism than trying to make all sex outside of marriage moral by simply defining any time you have sex as "marriage."
8.3.2007 7:38pm
WhoNeedsAName:
Plunge said at 9:01 pm on 8.2.07:


"I'm sure many pro gay groups define all christians as homophobic"

This is so misinformed that it's almost laughable. To begin with, most gay people in America are Christians. If you think that "many" gay rights groups define all christians as homophobes, I suggest you cite some mainstream ones to prove your point.

"There isn't even any scientific evidence that homophobic or racist parental speech is harmful."

If you are the Roger Schlafly related to Andrew and Phyllis, I'd say that you guys are all the evidence anyone needs.


Don't you see what you've done there? You began by criticizing someone for using anecdotal evidence to support a broader conclusion: namely, because he (presumably) knows a gay person who considers all Christians homophobic that there must therefore be many gay groups that believe similarly. You were right to call him out on this point, but you damage your argument by committing the same sin in your very next paragraph. Just because one person who was raised by homophobic parents did something to hurt a homosexual does not mean that all people raised by homophobic parents will do something to hurt homosexual people.

Also, I don't buy your claim that the majority of gay people in America are Christians. If you're going to call someone else out on making broad statements unsupported by "mainstream sources" you'd better be able to cite me a "mainstream" source that cooroborates what you said.
8.3.2007 7:53pm
PubliusFL:
"Also, I don't buy your claim that the majority of gay people in America are Christians. If you're going to call someone else out on making broad statements unsupported by 'mainstream sources' you'd better be able to cite me a 'mainstream' source that cooroborates what you said."

I think that's a plausible claim. This press release about a religious identification survey of homosexuals doesn't give complete data, but suggests that as many as 57% of homosexuals identify with some Christian denomination, although the percentage of those who are "practicing" is low.
8.3.2007 8:51pm
William Oliver (mail) (www):
Heh. This is simply the substitution of one religious principle for another. You can't teach that homosexuality is a sin because it is a sin to teach that homosexuality is a sin. This merely substitutes the judges religious axioms for those of the parents -- that it's a secular religion makes no difference.
8.4.2007 12:35am
Jay Myers:
Randy R.:

Exactly. That's all we are asking for too. If I don't get a job, it should be based on my lack of qualifications, not because of my sexual orientation. You can't deny people a job based on age, sex, pregnancy status, race, religion, and so on. We simply want sexual orientation to be one of those as well.

I admit that the law as currently enforced does prevent those things, but it is unconstitutional for it to do so.

"So why should someone have a right to force an owner to sell or rent to them? No matter what my opinion of the reason for the owner's reluctance, it is their property to do with as they will."

No it isn't.

It's not their property? Or we don't have the right to exclude whomever we wish from our property and to decide whom we will and will not sell it to?

So we have the right of conscience to think whatever thoughts we want and believe whatever we want, we have the right of free speech to say what we think and believe, but we don't have the liberty to act according to our beliefs regarding our own private property? Damn. And here I thought I lived in a free country.

You can't deny housing to a person simply because they he or she is black, female, Jewish, pregnant, and so on. We ask only that sexual orientation be included.

But the government *shouldn't* be able to prevent you, a private entity, from doing any of those things. That why the Civil Rights Act of 1875 was struck down by the Civil Rights Cases, 109 U.S. 3 (1883). Yes, similar language was inserted into the 1964 Civil Rights Act, but even its supporters expected the provisions governing conduct by private individuals and organizations to be struck down on review. Unfortunately, the court wasn't up to doing its duty.

"Finally, serving in the military is not in any way a right. It is a duty but it has never been a duty shared by everyone."

Not so.

You're saying that it *has* been a duty shared by everyone?

Up until the 1950s, blacks could not serve in an integrated military. If there is a reason why any particular person is not fit for the military, that is correct, they have no right to serve. but once determined fit, there is no reason to deny them the right to serve. And the military's official position is that gays are indeed perfectly fit to serve in the military. The SOLE reason for not allowing gays to serve *openly* is that other people, the straight ones, might have a problem with it. But as for gays, there is no question that they can and do serve honorably and well.

Social dynamics are different when you have people who are sexually attracted to one another, especially if some of them are having sex. That has always been the case. Yes, people will fight passionately for their lover but they often do so stupidly and at the cost of unit discipline. But at least Phillip II put up a nice memorial to the Sacred Band of Thebes after he utterly annihilated them.

"Can I be fired or not hired because I am white, male, or heterosexual? Sure. Can I be refused housing because of the same? Probably."

Perhaps, but then you would have a good lawsuit against them, and if proved in a court of law, then you would get the job or the housing.

But I wouldn't want to sue them. If they don't want to hire me for any reason then I don't believe that I have the right to force them to hire me anyway. Just as I want to be allowed to live in accordance with my own beliefs, I don't want to stop others from living in accordance with their beliefs. Even if I sometimes find those beliefs to be wrongheaded and repugnant. Aside from that, I certainly wouldn't want to work for/with someone who didn't want to hire me but was forced to anyway. I imagine that wouldn't be a very enjoyable workplace.

"you only have a right to marry if someone agrees to marry you."

True again. Except that when I find someone who agrees to marry me, I cannot,

You can if they are female and not closely related to you by consanguinity. That happens to be the exact same situation I am in. As I pointed out, despite being a privileged heterosexual I cannot marry another male even if we both want to for nonsexual reasons. Laws forbid all sorts of things and while it may be harder to endure for someone who strongly desires to do what the law prohibits, it is not any more of a restriction of their rights than it is a restriction of everybody else's rights.
8.4.2007 12:54am
Chairm (mail):
The court should not depend on the "psychological parent" doctrine. The second woman did not adopt although she could have adopted -- if the mother agreed to adoption. Neither woman showed that a direct child-parent relationship was intended during their time together. In effect, the court forced an adoption on the child and on the child's mother.

I agree with others that the court order regarding "homophobia" is an over-reach and is far too vague to impose on the mother and on the child.

There is a clear conflict here that defies the joint custody arrangement. Next we will see the lesbian woman holding the threat of a custody battle over the head of the mother who will be risking her child's well-being by teaching her child the basics of sexual morality. Suppose the mother takes her child to church or to Sunday school and the lesbian disagrees -- or finds "hostile" or "homophobic" the lessons the child learns. Does the mother get dragged into court and order not to teach her child her religious beliefs? And if she exercersiced her parental and religious rights -- would she then be denied custody, perhaps even visitation?

This looks like a setup for more conflict and does not serve the best interests of the child. The second woman should lose custoday and any visitation should be based on the mother's decisions. It is unjust that this other woman be imposed on the family life of the mother and daughter. It is the lesbian who should be restrained from teaching contrary to the mother's beliefs and wishes.

The other woman is not a mother but due to the custody decsion her lesbianism becomes an issue in the child's life -- against the wishes of the child's mother who has rejected lesbianism in terms of morality and, yes, in terms of her religion both belief and practice. The court has unjustly intruded too far into this child's life.

In this case it looks to me that the court is hostile toward the mother and is pretending that the best interests of the child can be detected only through the gay identity filter. That filter makes the judge less competent to know where the line should be drawn in issuing orders. The judge is inviting more lobsided involvement rather than sticking to his (or her) knitting.
8.4.2007 1:15am
Randy R. (mail):
"It's not their property? Or we don't have the right to exclude whomever we wish from our property and to decide whom we will and will not sell it to? "

You cannot refuse to rent to a person because he is black, or jewish. Similarly, you cannot refuse to sell your house to a person if they are black or jewish. I have no idea why you are so surprised to hear this: It's been part of our legal landscape for at least 30 years or so, and no one is complaining about it.

"Social dynamics are different when you have people who are sexually attracted to one another, especially if some of them are having sex. "

Except that isn't the case in the military. As I said, gays currently serve in the military and the military has no problem with that. It is only openly gay people that the military doesn't like. And then, it's not because there is some sort of sexual tension or social dynamics, it is solely because the military thinks the straights will somehow flip out if they knew someone was gay. But I can assure, there are plenty of gay men serving in the military now, many openly, and that is one of the reasons so many generals have asked to review DADT. In addition, the militaries of Great Britian, Canada, Australia, New Zealand, and most of NATO allow openly gay people to serve. They have done as the coalition forces in Iraq to no detriment. So if you are going to argue that gays in the military are bad, you need to show an example, rather than speculation.

"You can if they are female and not closely related to you by consanguinity."

Now you have changed the hypo. The issue was if I agree with another man to get married, we cannot. I would never agree to marry a woman. Bottomline: Straight people can get married to the person they love, whereas gay people cannot. Except in Massachusetts, of course, and I don't see any problems there with allowing gays to be married.

"Laws forbid all sorts of things." Sure does. That's why you can't fire a person or refuse to rent an apartment to someone based purely on their skin color. Why you wouldn't want to I have no idea, since as a landlord you should only be concerned with their ability to live up the terms of the lease. And if a gay person lives up to the terms of the lease, why wouldn't you want to rent to him?

"Laws forbid all sorts of things." Yes, but there must be a reason to forbid things, or else we lose respect for the law. If there is no reason to prevent me from marrying a man, then there should be no law against it.
8.4.2007 2:49am
Randy R. (mail):
Chairm: "In this case it looks to me that the court is hostile toward the mother and is pretending that the best interests of the child can be detected only through the gay identity filter."

One issue that hasn't been discussed. What if the child grows up and turns out he is gay? Having been placed in an environment hostile to gays, the child may well have suffered quite a bit of psychological damage.

Now, of course, it would be very difficult for a judge to determine whether a child is gay at so young an age. However, it may be that the best interests of the child are to not be placed in a hostile environment.
8.4.2007 2:53am