Constitutional democracies and their associated individual liberties can be buttressed by the force of written law, but ultimately the people and those who are entrusted with leadership in democratic institutions must respect individual liberties. No dam of written words can stand indefinitely against the perpetual force of individual and collective actions undermining individual liberties. The problem is that it is natural for human beings to desire outcomes some so badly that they rationalize ignoring individual rights. Honoring the rights of others rests on a respect and tolerance for the capacity of others to decide for themselves, even when we disagree. Tolerance can only be a virtue if practiced with respect to activities with which there is strong disagreement.
This natural tendency to ignore individual liberties in the pursuit of what some consider laudable goals accounts for the erosion of Fourth Amendment protections in pursuit of the War on Drugs and the sacrifice of First Amendment protections at the altar of campaign finance reform and abortion rights. To this we can now add circumscription of religious freedom in pursuit of the gay rights agenda.
Denver District Court Judge John W. Coughlin is probably a nice enough fellow who, I imagine, fancies himself as a compassionate modern-day Solomon adjudicating thorny issues. However, there are places that not even judges should intrude and Coughlin has taken it upon himself to control the religious instruction a parent provides her child.
It all started about eight years ago when Dr. Cheryl Clark adopted a little girl to raise with her lesbian partner Elsey McLeod. In 2000, Clark converted to Christianity and left the relationship, leaving the disposition of the child a point of conflict. Since Clark had been the only one to officially adopt the child, it would seem that McLeod had no parental rights whatsoever. Clark voluntarily offered visitation privileges, but McLeod sued for joint custody.
Judge Coughlin expanded a legal doctrine usually reserved for abandoned or neglected children who have been cared for by a third party. Clark declared that McLeod was a “psychological parent” who was entitled to share custody and equal parenting time. This decision represents an interesting issue in its own right. A principled extension of Coughlin’s jurisprudence would confer equal parental rights to a live-in boyfriend who neither sires nor adopts a child. However, for our purposes here, let us concede McLeod’s parental rights, regardless of serious reservations concerning the legal principle applied.
Given that McLeod and Clark have radically divergent religious views, Coughlin granted Clark authority over the young girl’s religious instruction. Coughlin overstepped his authority when he instructed that Clark, “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic.” Clark’s order was a presumptuous and vague injunction preventing Clark from exercising her First Amendment religious privileges. “Homophobic” itself is a problematic term. The term suggests fear but has been pulled and stretched to apply to anything that does not strictly conform to the gay rights agenda.
It is not uncommon in divorce cases for judges to constrain a custodial parent from disparaging the other parent. There is no indication that Clark made a point of disparaging her former partner, but even if she had, the restriction on religious instruction exceeds the judge’s constitutional authority. Consider the logic of the principle Coughlin is applying. If one parent divorces another for infidelity, does that mean that the custodial parent cannot attend or provide religious instruction to the child in a church that honors religious prohibitions against infidelity, lest the non-custodial parent would be indirectly cast in an ignoble light? If a non-custodial parent is a soldier, does that give a judge the authority to instruct a custodial parent to not attend a pacifist church? How far will judges like Coughlin go in deciding upon the specific religious doctrines that are suitable for instruction?
This case is on appeal. The US Constitution can only protect us to the extent that government institutions, particularly the Courts, honor constraints on arbitrary government power. Judge Coughlin’s ruling is an example of a good person yielding to the temptation of conforming to popular prejudices.