(The Return of) Ignatz, by Sam Heldman

Tuesday, October 22, 2002

I've been talking for the last few days about the installation, by Ala. Chief Justice Moore, of a Ten Commandments monument in the State Judicial Building. I had also mentioned some days ago, for the benefit of those who don't follow Alabama's judicial doings so closely, that if Chief Justice Moore's name rang a bell, it might be because of his concurring opinion in a case involving homosexuality. It was a custody case, in which Chief Justice Moore wrote that (based on biblical as well as legal texts) homosexuality was an abomination, and that a parent who engaged in the behavior was presumptively unfit to have custody of a child. Chief Justice Moore wrote:
I write specially to state that the homosexual conduct of a parent -- conduct involving a sexual relationship between two persons of the same gender -- creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others. … Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated.
There's much more in the opinion (linked above), that you may find interesting to read – not only about homosexuality, but about the nature of law and the relationship between law and religious morality. You may strongly disagree with it, as I do.

The purpose of this post is not to re-plow that ground, but to point out that last Friday, Chief Justice Moore issued a somewhat similar opinion (this time, dissenting from the denial of certiorari). This time, the issue was the effect of a parent's heterosexual adultery on a child custody determination. The trial court had awarded custody of the six-year-old kid to the mom, despite her having committed adultery; among the reasons for this decision was that, if the dad had custody, the kid would spend 10 to 12 hours per day in day care, and some weeks per year staying with relatives away from his home city while his dad was at work training, etc. The intermediate Court of Appeals affirmed. And the Alabama Supreme Court denied review. In his dissent from that denial of review, Chief Justice Moore indicated that in his view, adultery – like homosexual conduct – should create a strong presumption that the person is unfit for child custody. Indeed, though there is some ambiguity in the opinion on this point, Chief Justice Moore suggests that this presumption should be "conclusive". And the opinion takes some (but not all) of its inspiration from religious belief: that marriage is "divine" and "sacred" and "religious" and the like.

In an odd way, I am pleased to see that Chief Justice Moore's views do maintain a strict consistency: he's not just against gay sex and gay parents. It would have been worse, in my view, for him to advocate against custody for gay parents while letting the straight sex-law-breakers slide. So that's the good part, from my perspective. The other good part, from my perspective, is that Chief Justice Moore's opinions on these matters do not command a majority of the Court; indeed, no other Justice has joined his opinion in either case. Still, the practical advice is rather clear: if you're married but are feeling urges that you can't quite shake, don't accept that transfer to Alabama!

posted by sam 7:17 AM 0 comments


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