The Washington State Supreme Court recently handed down a ruling – in re Marriage of Black – reversing a custody ruling involving a highly religious couple in which the wife of 20 years decides that she is a lesbian and leaves. The courts awarded primary custody to the father as well as all decision-making authority regarding religious and educational matters. The mother claims that the procedure was biased against her sexual orientation, and the Washington State Supreme Court now officially agrees. The case has been sent back to the lower court for a new trial with explicit instructions that it be under a different judge – even though, as noted in a concurring opinion, there is no actual reason to believe the judge was biased (the contention is that the guardian ad litum was so biased).
I ran across this on Volokh Conspiracy, where Eugene Volokh agrees with the court’s reasoning overall but wishes it had been more explicit in its condemnation of the violation of the mother’s First Amendment rights. You see, part of the recommendation to the Court, which it adopted, is that the mother be prohibited from discussing matters of sexual orientation with her children. The reasoning was that since they were raised in a highly religious environment which specifically condemns homosexuality, her talking openly about her sexuality would amount to a criticism of their religion and would be confusing.
I’m right with Volokh in considering this a pretty cut-and-dried First Amendment violation. She should, obviously, be allowed to discuss her sexual orientation with her children, and she has the right to try to convince them that their religion is wrong.
That one point aside, I disagree with Volokh on almost everything else. The ruling seems wrong on a number of counts.
- Misunderstanding of precedent. At several points in its analysis, the Washington State Supreme Court relies on In re Marriage of Cabalquinto – 100 Wn.2d 325, 669 P.2d 886 – a 1984 Washington State Supreme Court case ruling that a lower court had … what else? … erred in not allowing a son to visit his recently-homosexual father in California. In that case, it was quite clear that the lower court judge was biased against the father on the basis of his homosexuality based on statements issued during oral arguments. It’s an odd case in that that it seems to have been an unbroken tie decided on voting procedure. There were 4 votes for the "majority" opinion, and also 4 for the dissent, one vote not cast, and then one vote for the majority result – i.e. not the reasoning. It’s odd because the dissent also seems to be an agreement with the result but not entirely the reasoning. The specific dispute is whether the Supreme Court has enough basis to conclude that the lower court abused its discretion. The majority says that the lower court erred, but declines to go so far as to say it abused its discretion; the dissenters want to go that far. The specific issue was one of visitation rights: the father decision to live openly as a homosexual broke up the marriage, and custody was awared to the mother. The father was allowed to visit his son at the son’s home in Seattle – at issue was whether he could also have his son over for visits to his home – shared with his lover – in California. Because the trial judge made it clear that he beleived a homosexual household was in itself a bad environment for raising children, the lower court denied the extended visitation rights. The nutshell version of (Washington) custody law is that it must be awarded solely on what’s best for the child – but that courts have very broad discretion to decide what that is. Probably, then, what was going on (and the dissent charges this explicitly) is that all 8 main voters on the panel – majority and dissent – agree that the lower court abused its discretion in citing the father’s homosexuality as a reason to deny a certian kind of visitation rights without explaining how the homosexuality would be harmful, it’s just that the majority would prefer to leave the "abuse of discretion" bit out of the ruling and so falls back on a tamer version, where the lower court has simply failed to sufficiently justify its opinion.
The point here is that neither the majority nor the dissent specifically ruled that sexual orientation of a parent was out of bounds as a factor in deciding what’s in the child’s best interest. They simply say that it alone cannot be – the burden is on the person citing it to explain how it is. And yet the current Wasington Supreme Court seems to have misunderstood the ruling as one ruling sexual orientation off the table entirely as a factor in making these decisions. That is simply wrong.
Further, to the extent that any part of In re Marriage of Cabalquinto justifies that interpretation, it comes from portions of the dissent that cites a 1980 case – Shuster v. Schuster – in which the Washington Supreme Court declined to alter a custody arrangement in which two women were living together with children from their previous marriages (to men) even though the custody order had specifically prohibited them from doing that. The original order was that they should live apart. Their ex-husbands, on finding out that they were in violation of the order, sued to have custody returned to them – but the court declined on the reasoning that stability is paramount. It doesn’t matter that the children’s current living arrangements are the result of a wilful violation of a court order – the point is that the court must not alter a child’s living arrangments without good cause. Since there was no evidence that the children were harmed by this arrangment, the court declines to change it, even though it’s technically illegal 1. The point here is that the precedent set by Schuster v. Schuster is NOT – or is in any case only secondarily so – that "homosexuality is not in and of itself a bar to either custody or reasonable visitation rights" – as the dissent would have it in In re Marriage of Cabalquinto. Rather, the main point is to affirm the standard that everything about custody must be decided on the basis of what’s in the children’s interest, and that – and this will be important later – stability of environment is to be highly valued in determining what’s in the children’s best interests.
So, there is simply nothing in the precedents cited that says that the homosexuality cannot play a role in determining custody. Quite the contrary – the precedents seem to pretty clearly say that anything can play a role provided a convincing case can be made that it’s harmful to the child. You can read these precedents to say that homosexuality per se is not harmful to children – indeed, they have to be read that way – but nothing about them says that homosexuality in context cannot be harmful. And in fact they’ve outlined one such case: where it upsets the stability of a child’s environment.
And that was, in fact, the argument in In re Marriage of Black. It wasn’t that the mother’s homosexuality was itself a disqualification for custody rights – merely that in this case and for this children it should be – because they’ve been raised to see it as a sin. Everything they’ve been taught up to now favors the traditional view of a family. Suddenly thrusting such children into a lesbian household pretty clearly upsets the stability of their environment. So, far from being inconsistent with Schuster v. Schuster (by way of In re Marriage of Cabalquinto), the lower court’s ruling was consistent with it.
Undue focus on parental rights. Despite noting in several places that the proper standard for determination of custody (and similar parental rights) is entirely what’s in the best interests of the children, the court seems largely motivated by a concern for Rachelle Black’s visitation rights. A clear case of this is on pp. 22-23 of the ruling, where the court takes testimony from the GAL as to why Charles Black is the better guardian (because he did not terminate the marriage, was not absent from the children’s lives for large periods of time, and because he did not deviate from the belief system in which the children were raised) and decides that it is being used to impermissibly punish Rachelle Black for her conduct and lifestyle. It’s true that the courts can’t use custody to reward lifestyles they apporove of, but there’s no indication that’s what the lower court was doing. The lower court wasn’t expressing disapproval of Rachelle’s lifestyle, it was rather choosing which of the two parents was in the best position to continue raising the children. These all seem like good reasons to favor the father on that count – especially if, as outlined in the previous point, stability of environment is of paramount concern here.
Misconstrual of a conflict of religious beliefs. Another basis for the court’s opinion is that religious considerations are specifically off limits when determining what’s in the child’s best interests. So, to take the actual precedent-setting example, if a marriage breaks apart because dad is Catholic and mom is Mormon, and mom converted to Catholicism to get married and the children were subsequently brought up as Catholics, if mom reverts to being a Mormon, the marriage disintegrates and she wins custody, the court may not prohibit dad from taking the children to mass during his visitation weekends, because doing so would be an impermissible governmental intrusion into religious matters. The court seems to want to take this precedent and argue that by letting religious stability be a factor in this particular custody decision, it would similarly be taking sides in a religious dispute, but that is simply not the case. The court is not favoring Charles’ religious beliefs, it is following its mandate to promote environmental stability for the children. As I said before, I agree that this tack is a very good argument against the part of the order that prohibited Rachelle Black from discussing her sexuality with her children. She has a right to speech and religious beliefs, and in any case the precedents cited very clearly give parents (Catholic dad, in the example) the right to teach different religious beliefs from those of the primary residence during their visitation time. So, yes, this works as far as it’s used to affirm Rachelle’s right to discuss her sexual orientation with her children, and to teach them an alternative to their father’s religion. But nothing seems to suggest that stability of religious belief can’t be a basis for determining custody, or educational decision-making rights, provided there is reason to believe that deciding one way or the other would be psychologically harmful. The requirement that the court stay strictly neutral between religions is a commandment that it not make value judgements about what kinds of religious belief are in general best for children. It doesn’t seem to be a prohibition against deciding, in a completely belief-system-neutral way, that continuing with a well-established system is psychologically easier on children than abruptly placing them into a conflicting belief system. Put it this way – imagine instead that you had a lesbian couple with children, one of whom became a born-again Christian and decided that homosexuality were sinful. Wouldn’t we agree that the court would be within its bounds to weigh that as a factor in favor of awarding custody to the still-lesbian partner over the recently-born-again one? Point being, as long as stability is the real basis for the ruling, and not favoritism toward certain religions, this should stand. Nothing that I can see in the fact-finding portion of the ruling gives any reason to believe that the lower court was prejudiced in favor of Charles Black’s religion on a purely content-driven basis. The concern was for stability of environment.
Uncharitable reading of testimony. The court makes a big deal of the fact that some statements of the GAL imply she thinks homosexuality is a choice, noting that this is inconsistent with our current understanding of sexual orientation. I’m not too clear on what is the jurisprudentially correct procedure here, but it seems that if the GAL’s reasoning for her recommendation that the mother not be given custody is otherwise solid, it shouldn’t matter that she has the "wrong" opinion about what causes homosexuality. That seems to be the case here. When the GAL refers to "choices" that the mother made, it is on the way to establishing a pattern of unreliability where the children’s care is concerned. This is evident even from the portions of her testimony that the majority cites – e.g.:
It is significant to note that the children, who have been enrolled in and attending a private Christian school since they each reached school age, have no idea that [Rachelle] now considers herself to be a lesbian. While it is not my intent to cast judgment on [Rachelle’s] lifestyle choice, the fact remains that it is a choice that can result in significant controversy. In this instance, the issue has disrupted the marriage and also resulted in difficulty with extended family.
In a footnote, the Court says that it is difficult to see what else Leblanc could have meant but that Rachelle’s lesbianism itself is a choice – but in fact what Leblanc claims she meant by it is the more obvious interpretation. She means "decision to abandon the children, get a divorce and run off with another partner." The continuation of her statement merely confirms this:
…did choose to spend a large majority of her time away from the home over the past three years; did choose to terminate the marriage; and is planning on living with [her partner]. All of those decisions were a matter of choice and all of those choices are inconsistent with teachings and principles that she and [Charles] elected to share with their children.
Indeed. And no one would hesitate to apply that standard to a heterosexual father who suddenly found himself in love with another woman and left the family to pursue her – the classic "dad ran off with his secretary" case. His heterosexuality would not be the issue: the court would understand that while the father’s attraction to the other woman and boredom with his wife may not be a choice, how he dealt with those feelings very much is, and that furthermore how he dealt with those feelings shows indications of a character that might not be the best fit for raising children. Leblanc doesn’t seem to be saying anything different about Rachelle Black – the only reason the court can’t see that is because it’s unduly concerned with protecting the rights of homosexuals. That’s fine, as far as it goes, but it shouldn’t go as far as causing it to lose sight of its primary duty to place children with the parent best suited to raise them in a divorce. Indeed, it’s probably illegal for it to go that far.
Given those four points, I think the Washington State Supreme Court is simply wrong. Consideration of parental sexual orientation is not per se impermissible in custody hearings, there is no evidence that the lower court was using custody to punish Rachelle Black for anything, and religious neutrality does not require the court to ignore its duty to provide the children with the most stable continuation of their environment prior to the separation that it can. What the court should’ve done is struck down only those portions of the lower court ruling that violated Rachelle Black’s First Amendment rights and left everything else about the order in place.
NOTE this post was edited a day after posting to add the fourth point. Nothing else was changed.
Actually, the court doesn’t quite go that far. If it were a violation of statute, things would be different – but it’s only in violation of a custody order, which is a kind of contempt of court violatin, and judges have almost total discretion as to what counts as "contempt of court." The majority decides to use its discretion in this case to not intervene – i.e. to ignore the violation.↩