As we’ve reported, Alabama Chief Justice Roy Moore, who is calling on his state to flout a federal court ruling striking down the state’s ban on same-sex marriage, has a long history of virulent anti-gay activism.
His hostility to gay people has also played a role in his time on the bench.
As AL.com columnist Kyle Whitmore noted yesterday, back in 2002, the Alabama Supreme Court heard a case regarding a custody dispute in which a woman who had previously allowed her ex-husband to have primary custody of their three children sued to modify the custody agreement because of reports that the children’s father had been committing verbal and physical violence against them. The woman, who had since entered a same-sex relationship, lost in the trial court phase but won on appeal, with the appeals court finding that the children’s father did in fact abuse them.
However, the Alabama Supreme Court reversed the appeal court’s decision, finding that the trial court judge “was in a better position to evaluate” the evidence of abuse.
Moore filed a concurring opinion making it clear that he saw the mother’s same-sex relationship as the main reason that she should not have custody over her children.
He cited biblical law, including the story of Sodom and Gomorrah, to make his case that “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” since “homosexual conduct by a parent is inherently detrimental to children.”
Homosexuality, Moore wrote, is a “criminal lifestyle” that is “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.”
“[E]xposing a child to such behavior has a destructive and seriously detrimental effect on the children. It is an inherent evil against which children must be protected,” he said.
“The effect of such a lifestyle upon children must not be ignored, and the lifestyle should never be tolerated,” he wrote. “The common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent.”
I concur in the opinion of the majority that D.H., the mother of the minor children in this case, did not establish a change of circumstances sufficient to transfer custody to her from H.H., the father of the minor children. I write specially to state that the homosexual conduct of a parent-conduct involving a sexual relationship between two persons of the same gender-creates a strong presumption of unfitness that alone is sufficient justification for denying that parent custody of his or her own children or prohibiting the adoption of the children of others.
In this case there is undisputed evidence that the mother of the minor children not only dated another woman, but lived with that woman, shared a bed with her, and had an intimate physical and sexual relationship with her. D.H. has, in fact, entered into a “domestic partnership” with her female companion under the laws of the State of California. But Alabama expressly does not recognize same-sex marriages or domestic partnerships. § 30-1-19, Ala.Code 1975. Homosexual conduct is, and has been, considered abhorrent, immoral, detestable, a crime against nature, and a violation of the laws of nature and of nature's God upon which this Nation and our laws are predicated. Such conduct violates both the criminal and civil laws of this State and is destructive to a basic building block of society-the family. The law of Alabama is not only clear in its condemning such conduct, but the courts of this State have consistently held that exposing a child to such behavior has a destructive and seriously detrimental effect on the children. It is an inherent evil against which children must be protected.
For the Court of Civil Appeals to incorporate into its opinion the evidence presented by the mother, while largely ignoring the father's testimony, witnesses, and characterization of the evidence is improper. It is not an appellate court's duty to overturn a trial court's judgment absent an abuse of discretion by the judge, who observed the witnesses and heard the evidence presented to him. Nor is it an appellate court's duty to redefine the morals of the State of Alabama. This Court is correct in upholding the trial court's ore tenus finding and Alabama precedent, which holds that homosexual conduct by a parent is inherently detrimental to children. Here, the trial court did not abuse its discretion, and the Court of Civil Appeals is clearly in error.
Finally, as if to remove any doubt that homosexuality is disfavored, the court marshaled further legal precedent:
“If we need to say more, if the record of constant quadrimillennial revulsion of moralistic civilizations from the vice that evoked the total and everlasting destruction of Sodom and Gomorrah has been blurred by the mutations of a few years of a single century, we underscore what was said in Horn v. State, 49 Ala.App. 489, 273 So.2d 249 (1973):
Thus, the policy of the law in Alabama-from its civil law to its Criminal Code to the educational programs provided to its public-school students-consistently condemns homosexual activity and the homosexual lifestyle. The effect of such a lifestyle upon children must not be ignored, and the lifestyle should never be tolerated.
Homosexuality is strongly condemned in the common law because it violates both natural and revealed law. The author of Genesis writes: “God created man in His own image, in the image of God He created him; male and female He created them․ For this reason a man shall leave his father and his mother, and be joined to his wife; and they shall become one flesh.” Genesis 1:27, 2:24 (King James). The law of the Old Testament enforced this distinction between the genders by stating that “[i]f a man lies with a male as he lies with a woman, both of them have committed an abomination.” Leviticus 20:13 (King James).
The State may not interfere with the internal governing, structure, and maintenance of the family, but the protection of the family is a responsibility of the State. Custody disputes involve decision-making by the State, within the limits of its sphere of authority, in a way that preserves the fundamental family structure. The State carries the power of the sword, that is, the power to prohibit conduct with physical penalties, such as confinement and even execution. It must use that power to prevent the subversion of children toward this lifestyle, to not encourage a criminal lifestyle.
The family unit does consist, and always has consisted, of a “father, mother and their children, [and] immediate kindred, constituting [the] fundamental social unit in civilized society.” Black's Law Dictionary 604 (6th ed.1990). To reward a parent, who steps outside that unit by committing a “crime against nature” with custody of a child would represent a reprehensible affront to the laws of family government that the State must preserve. The best interests of children is not promoted by such a subversion of fundamental law, the very foundation of the family and of society itself. The State may not-must not-encourage the destruction of the family.
No matter how much society appears to change, the law on this subject has remained steadfast from the earliest history of the law, and that law is and must be our law today. The common law designates homosexuality as an inherent evil, and if a person openly engages in such a practice, that fact alone would render him or her an unfit parent.