Fighting for the family: Alabama Supreme Court Chief Justice Roy Moore is again fighting for biblical principles, this time to prevent homosexual adoption from destroying the traditional family. (Cultural Currents).

On February 15th, Alabama's Supreme Court released its decision in Exparte H.H., a controversial child custody case involving a couple who divorced in 1992 when they were living in Los Angeles. They were identified in the decision only by the initials H.H. (the father) and D.H. (the mother) to protect their three children.

At the time of the divorce they had been awarded joint custody of the children, with the mother receiving primary physical custody. The father subsequently moved to Alabama. The mother and children remained in California, where she entered a "domestic partnership" arrangement (as authorized by California law) with a lesbian lover. In 1996 she petitioned a California court to transfer physical custody of the children to her former husband. The request was granted, and the youngsters moved to Alabama to be with their dad.

In February 1999, however, the mother had a change of heart and filed another petition, this time seeking to have custody of the children returned to her on grounds that her ex-husband had abused them verbally, emotionally, and physically. At his request, jurisdiction over the case was transferred to Alabama.

In June 2000, following two days of oral testimony, an Alabama trial court ruled that, since the mother failed to demonstrate that the 1996 order should be modified, the father should retain custody of the children, who were ages 13, 15, and 16 at the time.

The mother filed an appeal with the Alabama Court of Civil Appeals, which reversed the trial court. It held, among other things, that the mother (an erstwhile alcoholic) could provide a better home for the children since she was now sober, and that "no evidence indicated that the mother's homosexual relationship ... would have a detrimental effect on the well-being of the children." In turn, the father appealed that decision to the state Supreme Court.

The unanimous decision, written by Justice Gorman Houston, was based on technical grounds. The opinion did not directly address the morality or legality of the mother's lesbianism, but a carefully reasoned and meticulously documented concurring opinion by Chief Justice Roy Moore confronted that issue head-on. As a result, while the main decision angered and disappointed homosexual and lesbian activists and their sympathizers in the media, most of the lavender lobby's venom has been directed at the chief justice.

Such controversy is nothing new for the principled jurist, who is a staunch Christian. He drew similar flak from secular humanist and anti-Christian elements in the mid-1990s when, as a circuit court judge, he posted a Ten Commandments plaque in his office and kept it there in the face of a ferocious attempt to force its removal. Similarly, in August of last year he had an impressive, privately financed granite sculpture placed in the rotunda of the Alabama Judicial Building as public acknowledgment of God's influence on the law. It features the Ten Commandments, supplemented by 14 quotations from the Founding Fathers and other historical sources. When it, too, came under attack, Justice Moore was unswerving in his defense of it. (*)

The Smear Unfolds

An editorial in the Montgomery Advertiser for February 19th described Moore's opinion as a "message of hate" that raised the specter of increased violence by perpetrators of "hate crimes." Ken Baker, chairman of the pro-homosexual organization Equality Begins at Home of Central Alabama, seconded the sleazy smear with the comment that "all he [Moore] didn't do was hand out the rope." Two days later, the Washington Post's left-wing editorialists assailed Moore as an "unrepentant homophobe" afflicted with "prejudice and paranoia" who had displayed "blatant bigotry" that "warrants his removal from the court." Lorri L. Jean, executive director of the National Gay and Lesbian Task Force, also called for the chief justice to step down, utilizing the same "blatant bigotry" slur, supplemented with a reference to Moore's supposed "unrepentant ignorance."

Also on February 21st the New York-based Lambda Legal Defense and Education Fund, Inc. -- which describes itself as a "national organization committed to achieving full recognition of the civil rights of lesbians, gay men, bisexuals, the transgendered, and people with HIV or AIDS" -- filed a complaint with the Alabama Judicial Inquiry Commission, charging Moore with sundry ludicrous counts of "ethical misconduct."

If it is true that a person's character is revealed as much by the enemies he makes as by the friends he earns, Chief Justice Moore would appear to be a public servant of noble character indeed!

What the Judge Said

In his nearly 7,000-word opinion, Moore bluntly asserted that in Alabama, "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, he confirmed with numerous citations, "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."

Regarding child custody cases, such as Ex parte H.H., he wrote that "the homosexual conduct of a parent ... 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." Indeed, "To disfavor practicing homosexuals in custody matters is not invidious discrimination, nor is it legislating personal morality. On the contrary, disfavoring practicing homosexuals in custody matters promotes the general welfare of the people of our State in accordance with our law, which is the duty of its public servants. Providing for the common good involves maintaining a public morality through both our criminal and civil codes, based upon the principles that right conscience demands, without encroaching on the jurisdiction of other institutions and the declared rights of individuals."

He further explained that while the state "may not interfere with the internal governing, structure, and maintenance of the family." the "protection of the family is a responsibility of the State," and child 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." In pursuit of that objective, he contended, the state must wield authority within its legitimate sphere of influence "to prevent the subversion of children toward this [homosexual] lifestyle, to not encourage a criminal lifestyle."

Quoting Black's Law Dictionary, the chief justice stated: "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.'" He pointed out that 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."

In 1975, when the Alabama Court of Criminal Appeals addressed a defendant's claim that state appellate courts had not defined the crime of sodomy (under a previous criminal code) as a crime "involv[ing] moral turpitude," the criminal appeals court did not hesitate to affirm that "sexual relations between persons of the same sex ... involves moral turpitude." Moral turpitude was defined (in The Law of Evidence in Alabama by James Russell McElroy) as signifying "an inherent quality of baseness, vileness, [and] depravity" and implying "something immoral itself, regardless of the fact whether it is punishable by law." The court held that "The doing of the [homosexual] act, and not its prohibition by statute, fixes the moral turpitude," and "the practice of sodomy is inherently inimical to the general integrity of the human person, and is clearly an offense involving moral turpitude whether defined by common law or by statute.'" In his opinion, Judge Moore observed that the court "made its condemnation of such co nduct unequivocal: 'We are aware of no other crime at common law that has been as vehemently and copiously characterized as infamous.'"

He also noted that Alabama's sex-education policies for government-school students specifies that course materials and instruction "that relate to sexual education or sexually transmitted diseases" should include "an emphasis, in a factual manner and from a public health perspective, that homosexuality is not a lifestyle acceptable to the general public and that homosexual conduct is a criminal offense under the laws of the state."

Summing up, Chief Justice Moore asserted: "From its earliest history, the law of Alabama has consistently condemned homosexuality. The common law adopted in this State and upon which our laws are premised likewise declares homosexuality to be detestable and an abominable sin. Homosexual conduct by its very nature is immoral, and its consequences are inherently destructive to the natural order of society. Any person who engages in such conduct is presumptively unfit to have custody of minor children under the established laws of this State. D.H. is no exception."

The brouhaha over Ex parte H.H. may not be over. On February 18th, Birmingham attorney Wendy Crew, who represents D.H., told reporters that she intends to ask the U.S. Supreme Court to resolve the conflict between California law, which legitimized her client's lesbian relationship, and the Alabama statutes that deem such liaisons to be criminal.

(*.) See "The 'Ten Commandments' Judge" in THE NEW AMERICAN for September 10, 2001.