Seems like only yesterday that Colorado earned the "Hate State" moniker after voters in 1992 passed Amendment 2, which prohibited local governments from including gays and lesbians in anti-discrimination laws. Opponents quickly won an injunction against the amendment, and it eventually was invalidated by the U. S. Supreme Court before it could ever take effect. During that time, religious-right groups based in Colorado (such as Promise Keepers and Focus on the Family) rose to prominence, and while some of the stigma of Amendment 2 has faded, the state remains one of the key battlegrounds for GLBT issues. Ironically, gay marriage isn't one of them--Colorado's statute is very clear that a legal marriage is heterosexual, so the notion that a county clerk would issue a license to same-sex couples is all but unthinkable.
Because of this, occasionally the situation arises that same-sex couples must deal with child custody issues when they separate and one of the partners is also a parent. It's not a common occurrence, but the state's children's code is very clear that whenever a custody issue exists, the
the best interests of the child is paramount to other legal considerations, including the parental status of the petitioner and respondent. (Legally, however, same-sex partners cannot both adopt the same child in Colorado.) Thus the partner of a gay parent, if they have established a nurturing relationship with their partner's child, may be considered a parent in kind and must abide by custody orders issued by the court. This usually involves details such as parenting time and child support, but it may also include, if the split is acrimonious, an order by the judge prohibiting either parent from disparaging the other in front of the child. Gay or straight, separation or divorce sucks, and people can get pissed off, but it's important not to undermine the relationships that enable the child to feel secure in an often bewildering situation.
It was with these principles in mind that Denver district judge John Coughlin ruled a year ago that a child, who had been raised by a lesbian couple that later separated, could not be exposed to religious teachings that condemned homosexuality. The child's adoptive mother had converted to Christianity and renounced lesbianism, and had begun taking the child to her church. Coughlin ordered the child's mother not to expose the child to any teachings that could be considered homophobic, so as not to undermine the child's relationship with her "other mommy."
I thought this raised an intriguing question when I first read about the case: where does a parent's First Amendment rights end and their child's rights begin? I generally tend towards protecting the parent's right to raise their children however they choose, even if it means exposing their kids to religious or moral principles I find detestable. But here was a situation where a woman has developed a close, nurturing relationship with her ex-lesbian partner's child. What would become of that relationship if the child's mother began teaching her that her other mommy was an abomination in the eyes of God?
Coughlin, in my mind, did what he had to: protect the child's best interests. He didn't restrict what the child's mother could do as an individual, just what she could do as a parent.
This happens all the time in child custody cases. It would be no different from ordering a father not to tell his son that women are evil monsters bent on destroying anyone with a penis.
Update, 4/26: One point I forgot to mention is that in custody issues involving mixed-faith couples, both parents often have to work out an agreement on the religious upbringing of their child. This happens regularly without so much as a peep from the religious right, and only serves to point out the reality that this case has nothing to do with one parent's First Amendment rights and everything to do with the fact that the other "parent" is the same sex.
(end update)
But, because this involved gay partners, the religious right in the state legislature caught wind of the ruling, and now Greg Brophy, a Republican legislator from Wray,
is calling for Coughlin's impeachment for "malfeasance in office." It might also come as no surprise that
Focus on the Family is lobbying legislators to support the impeachment as a way to "defend the family from liberal judges legislating from the bench."
Ah, that's it. Not homosexuality--it's liberal judges who are to blame! Never mind that Coughlin is also the judge who in 2002 threw out the GOP's redistricting plans, which would have heavily tilted Colorado's congressional districts towards the right (but surely that's not a motivating factor, right?). Never mind that impeachment is meant as an action of last resort for judges who have committed criminal wrongdoing or demonstrated a clear unfitness for the bench. Never mind that most other Republican legislators, and even Governor Bill Owens (one of the current darlings of the national GOP), have criticized the resolution as far too heavy-handed. Never mind that Coughlin has 25 years of judicial experience and is considered a highly competent judge by his peers and attorneys alike.
Nope, he issued a ruling that some "corn and watermelon farmer" (a quote from the news article) interpreted as a direct assault on his notion of God and country, and now Coughlin stands accused of "judicial tyranny" and "legislating from the bench." Well, how is that different from adjudicating from the legislative floor? A judge has one job: to interpret law and issue decisions consistent with state and Federal constitutions. If he's also taking kickbacks from the Saudis in exchange for ordering public schools to read from the Quran every morning,
then you impeach him. If he just issues a decision that is jurisprudent but not necessarily one you agree with, then you lobby the
voters to kick his ass off the bench come election time. That's how you fight back against "judicial tyrants," just as I plan to fight back against right-wing legislative tyrants. You may reap the whirlwind yet, Mr. Brophy.
