Three members of state’s Supreme Court base custody opinions on Bible
An 8-to-1 ruling in a child custody case July 29 by the Alabama Supreme Court illustrates the degree to which Christian fundamentalism influences some members of that court, a panel known to be particularly homophobic.
In a case that sparked separate opinions by six of the nine justices, at least three asserted that parental rights are “God-given,” with one of them, the lone dissenting judge going further and placing his view of a “Higher Authority” as the source of governmental legitimacy.
The dissenter, Tom Parker, specifically criticized a recent West Virginia Supreme Court decision in which a lesbian co-parent was awarded custody of a child in a dispute with the child’s maternal grandparents. Parker was elected to the court last year as part of the Christian fundamentalist reaction to the removal from the bench of Chief Justice Roy Moore for his refusal obey a federal court order to remove a Ten Commandments monument from the courthouse. Parker’s official biography on the court’s Web site cites his connection with Alabama organizations associated with James Dobson, Pat Robertson and the notoriously anti-gay Focus on the Family organization, and suggests that Moore is his mentor.
Thus his theologically based dissenting opinion is no surprise in this case, although its starkly worded presentation is startling.
The Alabama case, “Ex parte G.C., Jr.,” does not itself involve gay issues. G.C., Jr. is the six-year-old son of G.C., the child’s father, and his mother, L.B., identified in court documents only by their initials. The two met in 1998 at a Narcotics Anonymous meeting. They had an affair, L.B. became pregnant, but they did not marry. Though out of state at the time of the child’s birth, G.C. requested a paternity test, which established that he was the father, but did not seek to be declared the legal father until more than a year later. He visited only occasionally.
The child lived mainly with L.B.’s parents, and was entirely in their care after L.B. overdosed from drugs and entered a rehabilitation center. When the child was four years old, a legal battle erupted between the grandparents and G.C., apparently spurred on by his own mother, over parental rights. The child’s maternal grandparents had raised him with G.C. exercising occasional visitation, but the father wanted to be given sole custody.
The trial court concluded that G.C., Jr., who had bonded with his grandparents, should be in their custody. G.C. had waived his rights as a biological parent by allowing his son to be raised by the child’s maternal grandparents and not asserting his standing earlier, the court found. The trial court also found that G.C. was unfit to exercise custody for a variety of reasons.
The Alabama Supreme Court voted 8-to-1 to affirm the trial court’s custody decision, but was sharply split over the issue of the declaration of unfitness, with several judges writing concurring and partial dissenting opinions. Only Parker completely dissented.
Justice Lyn Stuart wrote for the majority of the court, in one opinion voicing her own views and a second joined by other justices. In expressing her own views, she stated, “Children are a gift from God. They need and deserve the love and support of both their mothers and their fathers. Parents have God-given rights concerning their children, which are and should be protected by state government… [But] rights must be claimed and responsibilities assumed or they may be forfeited.”
In a footnote, Stuart cites three verses from Psalm 127 as authority for the first sentence in that quote above.
Justice Michael Bolin, also elected to the court as part of a religious upsurge in 2004, concurred with the majority opinion, but stated his agreement with some of Parker’s religious assertions.
“I agree with the characterization of the view of our country’s Founding Fathers that God, not the state or any government established by man, is the source of all our rights,” Bolin wrote. “With parental rights, ordained by God, come parental responsibilities, just as much ordained by God. In fact, we can say that the more sacred the right, the more solemn the responsibility. The defaults of the father to his divinely appointed parental responsibilities throughout his child’s life can only be described as egregious.”
Parker used his dissent as an occasion to spell out a detailed theocratic philosophy of government, captured in his assertion: “Courts must recognize that the state is but one of several spheres of government, each with its distinct jurisdiction and limited authority granted by God.”
Parker also wrote that the various “government spheres… all possess grants of specific and limited jurisdiction from the ultimate source of all legitimate authority, God (see Romans 13:1-2 [“there is no authority except from God, and those that exist have been instituted by God”]), who as the Supreme Judge of the World is the final authority over all disputes among men as well as among all governments of men. (See Declaration of Independence.)”
This assertion would surely have amazed Thomas Jefferson, the principal author of the Declaration, a freethinking deist who used formulaic language about the creator to ground a theory of natural rights without specifically using the word God. Indeed, the Declaration of Independence was considered revolutionary in rejecting the divine right of kings as a source of governmental authority.
That a 21st century American judge would cite biblical text for the proposition that God’s word takes priority in a court over constitutions, statutes and judicial precedents suggests a rejection of the First Amendment’s “establishment clause” and an environment unlikely to be hospitable to claims by gay, lesbian and transgendered litigants. Parker’s mentor, former Chief Justice Moore, was infamous for a homophobic, religiously based diatribe in his written opinion in a lesbian custody case.
Regarding the West Virginia lesbian custody case, Parker wrote, “A recent ruling from the West Virginia Supreme Court of Appeals illustrates the consequences of converting God-given rights into state-granted privileges and thus underscores the importance of judicial acknowledgement of, and deference to, the true source of our rights.”
Horror dripping from his pen, Parker wrote that the West Virginia court “held that custody of a child should be awarded to a lesbian ‘partner’ of the child’s deceased mother rather than to the child’s natural grandparents, because the lesbian was the child’s ‘psychological parent’ and the child’s ‘second mother, by design’ and ‘in actuality.’” He argued that “erroneous presuppositions underlie the West Virginia ruling,” writing that the concept of psychological parents is “fundamentally incompatible with our Founders’ belief that inalienable rights, including parental rights, are given by God, who as the Creator determines their nature and limits.”
Parker insisted that G.C. had not exercised his parental prerogatives earlier because he did not understand his rights.
“At first blush,” wrote Parker, “it may seem peculiar that a father would doubt his right to sole custody of his own infant child. But that is not so peculiar in a world in which courts have granted women the legal ‘right’ to terminate the life of their pre-born children without even notifying the fathers, let along obtaining their consent,” borrowing a way of describing fetuses taken straight from the anti-abortion movement.
The God-rhetoric throughout Parker’s opinion is startling although sadly not unprecedented in Alabama, in light of Moore’s example. At least two other members of the court echoed Parker’s views. The fact that Justice Stuart found it necessary to write two separate opinions, however, suggests that a majority of the court was unwilling to sign on to such rhetoric, offering the best ray of hope from this case.