Introduction
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.
The Court of Civil Appeals erred in concluding that a change of custody was justified in this case. The court's holding not only contradicts the findings of the trial court, which heard the evidence ore tenus, but it also violates the established law of this State and defies logic and reason. The Courts of Alabama should continue to recognize that a homosexual lifestyle is “illegal under the laws of this state and immoral in the eyes of most of its citizens.” Ex parte D.W.W., 717 So.2d 793, 796 (Ala.1998).
I. The Ore Tenus Standard
In a child-custody case where a trial court is presented with ore tenus evidence, an appellate court must presume that the trial court's findings of fact are correct. Ex parte Bryowsky, 676 So.2d 1322, 1324 (Ala.1996). The appellate court must not substitute its judgment or “reweigh the evidence,” but will reverse only if the trial court has abused its discretion or if that court's determination so lacks factual support as to be plainly and palpably wrong. 676 So.2d at 1324. The trial court is in the best position to hear the evidence, to observe the witnesses, and, therefore, to sit in judgment of disputed evidence presented ore tenus. 676 So.2d at 1324. An appellate court oversteps its bounds when it presumes itself the superior arbiter of testimony previously viewed, heard, and judged-in living color-by a trial judge elected to do precisely that.
The Jefferson Circuit Court was presented evidence ore tenus in this child-custody case. Much of the evidence was disputed and contradictory; the trial court considered all of it. The trial court accordingly found that the father had not abused the children and that the mother had failed to prove that a modification of custody was required.
In determining whether a change of custody would meet the Ex parte McLendon, 455 So.2d 863 (Ala.1984), standard, i.e., whether the benefits of a change of custody would offset the inherently disruptive effect caused by uprooting the children, the Court of Civil Appeals stated: “No evidence indicated that the mother's homosexual relationship, which is accepted under California law through the ‘Domestic Partnership Act,’ would have a detrimental effect on the well-being of the children.” 830 So.2d at 20. By its holding, the Court of Civil Appeals implied that the trial court had abused its discretion in weighing the evidence. This statement indicates that the Court of Civil Appeals considered the mother's homosexual conduct in itself to be a neutral factor that would have no detrimental effect upon the children; it contradicts even the argument of the mother, D.H., who stated in her brief that “[t]he only negative factor that the trial court could find regarding the mother was that she had a domestic partner.” The Court of Civil Appeals not only reweighed the evidence in violation of the ore tenus standard but also recategorized homosexual conduct of a parent as not detrimental to the minor children.
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.
II. The Law in Alabama
In the context of child-custody disputes, this Court, in Ex parte J.M.F., 730 So.2d 1190 (1998), recently reaffirmed that it is within a trial court's discretion to determine that the homosexual conduct and relationship of a parent seeking custody or a modification of custody is detrimental to the children. In J.M.F., this Court affirmed a trial court's change in custody from the mother to the father, where the father had remarried and the mother was engaged in “an open lesbian relationship.” 730 So.2d at 1195.
In J.M.F., the mother and her lesbian partner had “established a two-parent home environment where their homosexual relationship [was] openly practiced and presented to the child as the social and moral equivalent of a heterosexual marriage.” 1 730 So.2d at 1195. In doing so, this Court said that the mother had “chosen to expose the child continuously to a lifestyle that is ‘neither legal in this state, nor moral in the eyes of most of its citizens.’ ” 730 So.2d at 1196 (quoting Ex parte D.W.W., 717 So.2d at 796).
Only months before its decision in J.M.F., this Court, in awarding a mother only restricted visitation rights held that “the trial court did not abuse its discretion in considering the effects on the children of their mother's ongoing lesbian relationship.” Ex parte D.W.W., 717 So.2d at 796. This Court held that the restriction of visitation was a “common tool[ ] used to shield a child from the harmful effects of a parent's illicit sexual relationships-heterosexual or homosexual.” 717 So.2d at 796 (footnote omitted). Moreover, this Court noted that because “conduct inherent in lesbianism is illegal in Alabama,” § 13A-6-65(a)(3), Ala.Code 1975, the mother was “continually engaging in conduct that violates the criminal law of this state.” 717 So.2d at 796.
“Exposing her children to such a lifestyle, one that is illegal under the laws of this state and immoral in the eyes of most of its citizens, could greatly traumatize them. Given both the demonstrable harm to these children that has already occurred and the potential for harm through continued exposure to their mother's lifestyle, we cannot hold that the trial court abused its discretion in imposing these limitations on [the mother's] visitation.”
717 So.2d at 796 (emphasis added). Thus, this Court has recognized that homosexual conduct and the homosexual lifestyle have a detrimental effect on the well-being of children. See also H.J.B. v. P.W., 628 So.2d 753, 756 (Ala.Civ.App.1993) (father's admitted homosexuality was a factor supporting a “change of circumstances sufficient to warrant a change of custody”); McGinnis v. McGinnis, 567 So.2d 390, 392 (Ala.Civ.App.1990) (affirming the trial court's conclusion that the children's exposure to their mother's homosexual relationship and use of illegal drugs “created an environment in which the minor children should not be reared”).2
As noted in J.M.F., supra, and D.W.W., supra, homosexual activity is a crime in Alabama. The Alabama Legislature, “representing the collective expression of moral aspirations,” 3 has made homosexual conduct a Class A misdemeanor. Ala.Code 1975, § 13A-6-65.4 One commits the crime of “sexual misconduct” when “[h]e or she engages in deviate sexual intercourse with another person.” Ala.Code 1975, § 13A-6-65(a)(3). “Deviate sexual intercourse” is defined in Ala.Code 1975, § 13A-6-60(2), and includes “conduct inherent in [homosexuality].” D.W.W., 717 So.2d at 796. Lest there be any doubt, the Legislature made it clear that its definition of “deviate sexual intercourse” in § 13A-6-65(a)(3) “[made] all homosexual conduct criminal.” Commentary to § 13A-6-65 (emphasis added).5
The policy of the law in Alabama toward homosexuality is reflected not only in its Criminal Code, but also in its sex-education programs for public-school students, as stated in § 16-40A-2, Ala.Code 1975:
“(c) Course materials and instruction that relate to sexual education or sexually transmitted diseases should include all of the following elements:“․
“(8) 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.”
(Emphasis added.)
Alabama's courts, even beyond the context of a custody dispute, have expressed a moral revulsion to homosexual activity, reminiscent of that expressed by Sir William Blackstone in his Commentaries on the Laws of England. Earlier courts refused even to describe the activity inherent in homosexuality, stating that “[the crime against nature] is characterized as abominable, detestable, unmentionable, and too disgusting and well known to require other definition or further details or description.” Horn v. State, 49 Ala.App. 489, 491, 273 So.2d 249, 250 (1973).
In 1975, the Alabama Court of Criminal Appeals addressed a defendant's claim that Alabama appellate courts had not defined the crime of sodomy (under the former Criminal Code) as a crime “involv[ing] moral turpitude.” Williams v. State, 55 Ala.App. 436, 437, 316 So.2d 362, 363 (Crim.1975). The Court had “no hesitancy whatever” in concluding that “sexual relations between persons of the same sex,” however denominated, “involves moral turpitude.” 55 Ala.App. at 437, 316 So.2d at 363. “ ‘ “Moral turpitude signifies an inherent quality of baseness, vileness, [and] depravity,” ’ ” and “ ‘ “implies something immoral itself, regardless of the fact whether it is punishable by law.” ’ ” 55 Ala.App. at 437, 316 So.2d at 363 (quoting McElroy, Law of Evidence in Alabama § 145.01(7)(2d ed.1959)). “ ‘The doing of the [homosexual] act, and not its prohibition by statute fixes the moral turpitude.’ ” 6 55 Ala.App. at 437, 316 So.2d at 363 (quoting McElroy § 145.01(7)). The Court agreed that “ ‘[t]he 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.’ ” 55 Ala.App. at 437, 316 So.2d at 364 (quoting 70 Am.Jur.2d Sodomy § 2 (emphasis omitted)).
Having made the point that the crime of sodomy involves moral turpitude, the Williams Court made its condemnation of such conduct unequivocal: “We are aware of no other crime at common law that has been as vehemently and copiously characterized as infamous.” 55 Ala.App. at 438, 316 So.2d at 364. Although the Court referred to Britain's 1967 “decriminalization of homosexual behavior by consenting adults in private,” id., the Court explained that the nation's earlier history, law, and literature counseled otherwise and “[testified] alike to the generally recognized baseness of the crime, and the word infamous is usually found as a concomitant epithet.” 55 Ala.App. at 438, 316 So.2d at 364. The act itself is so “infamous” that the slanderous or libelous accusation of someone being guilty of the crime is “one of the most grievous wrongs”:
“ ‘If any crime, says Bacon, deserved to be punished in a more exemplary manner, this one certainly does. Other crimes may be prejudicial to society, but this one strikes at its being. A person who has been guilty of so abusing his faculties will not be likely afterwards to have a proper regard for the opposite sex. The tendency is to deprave the appetite and produce in the person insensibility to the most ecstatic pleasure which human nature is capable of enjoying-the society of women․ The tendency of the imputation is to degrade the person charged both morally and socially, and forever brand him with unpardonable infamy and disgrace-a social outlaw; and hence the charge, if unfounded and maliciously made, must be regarded as one of the most grievous wrongs known to the law of our land.’ ”
Williams, 55 Ala.App. at 438, 316 So.2d at 364 (quoting Newell, Slander and Libel § 116 (3d ed.)).
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):55 Ala.App. at 438-39, 316 So.2d at 365.
“ ‘The statute here questioned only fixes the punishment for crime against nature, a criminal offense recognized as against human morality and to apply to carnal copulation contrary to nature by the common law and anciently. We adopted the England common law. Title 1, § 3, Code of Alabama 1940, Recompiled, 1958. Johnson v. State, 18 Ala.App. 70, 88 So. 348 [(1921)]. Public and legal history is replete with knowledge of this criminal offense.’ ”
Other Alabama statutes reinforce the idea that homosexuality is an evil disfavored under the law. Art. VIII, § 182, Ala. Const.1901, lists conviction for sodomy as one of the offenses that will disqualify a person from being able to vote. Section 16-1-28 forbids the use of public funds or facilities by a college or university to “directly or indirectly, sanction, recognize, or support the activities or existence of any organization or group that fosters or promotes a lifestyle or actions prohibited by the sodomy and sexual misconduct laws․” Section 30-2-1(5), Ala.Code 1975, lists the commission of a “crime against nature” as a ground for divorce.
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.
Natural law forms the basis of the common law.7 Natural law is the law of nature and of nature's God as understood by men through reason, but aided by direct revelation found in the Holy Scriptures:
“The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the Holy Scriptures. These precepts, when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man's felicity.” 8
1 William Blackstone, Commentaries 42. Blackstone's Commentaries explain that because our reason is full of error, the most certain way to ascertain the law of nature is through direct revelation. The ultimate importance of this law and its influence upon our law cannot be understated.
“Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these. There is, it is true, a great number of indifferent points, in which both the divine law and the natural leave a man at his own liberty; but which are found necessary for the benefit of society to be restrained within certain limits. And herein it is that human laws have their greatest force and efficacy; for, with regard to such points as are not indifferent, human laws are only declaratory of, and act in subordination to, the former.”
1 Blackstone, Commentaries 42.
There are impeccable American sources for the above proposition. James Wilson, Associate Justice on the first United States Supreme Court and signer of both the Declaration of Independence and the United States Constitution, said:
“Human law must rest its authority ultimately upon the authority of that law which is divine․ Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other.”
James Wilson, “Of the General Principles of Law and Obligation,” in 1 The Works of the Honourable James Wilson, 104-06 (Bird Wilson ed., Bronson and Chauncey 1804). John Jay, first Chief Justice of the United States Supreme Court and coauthor of the Federalist Papers, declared:
“[N]o sovereign ought to permit those who are under his Command to violate the precepts of the Law of Nature, which forbids all Injuries․”
“John Jay's Charge to the Grand Jury of the Circuit Court for the District of Virginia, May 22, 1793, Richmond, Virginia.” 2 The Documentary History of the Supreme Court of the United States, 1789-1800, at 386 (Maeva Marcus, ed., Columbia University Press 1988).
Our own Declaration of Independence refers to “the laws of nature and of nature's God”:
“When, in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
(Emphasis added.) It would be an odd logic to assert that the American colonies could use the law of God “to dissolve the political bonds which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them,” but not to decide the fundamental basis of their laws.
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).
From the passage in Leviticus 20:13, the early western legal tradition garnered its laws on homosexuality. The Corpus Juris Civilis is the sixth-century encyclopedic collection of Roman laws made under the sponsorship of Emperor Justinian. “It is Justinian's collection which served as the basis of canon law (the law of the Christian Church) and civil law (both European and English).” 9 The following is a statement in Law French from Corpus Juris:
“ ‘Sodomie est crime de majeste vers le Roy Celestre,’ and [is] translated in a footnote as ‘Sodomy is high treason against the King of Heaven.’ At common law ‘sodomy’ and the phrase ‘infamous crime against nature’ were often used interchangeably.”
Raymond B. Marcin, Natural Law, Homosexual Conduct, and the Public Policy Exception, 32 Creighton L.Rev. 67 (1998) (quoting 58 C.J. 785). In the Middle Ages, St. Thomas Aquinas, a preeminent disciple of natural-law theory, called homosexuality “contrary to right reason” and “contrary to the natural order.” St. Thomas Aquinas, 4 Summa Theologica, Secunda Secundae, Quest. 154, Art. 11 (Benziger Bros. Press 1947).
Sodomy was codified by statute as a serious crime early in England. “The earliest English secular legislation on the subject dates from 1533, when Parliament under Henry VIII classified buggery (by now a euphemism for same-sex activity, bestiality, and anal intercourse) as a felony. Penalties included death, losses of goods, and loss of lands.” Vern L. Bullough, Homosexuality: A History 34 (New American Library 1979). Taking his cue from this tradition, Sir Edward Coke, the dean of English law, called homosexuality “a detestable, and abominable sin, amongst Christians not to be named, committed by carnal knowledge against the ordinance of the Creator, and order of nature, by mankind with mankind, or with brute beast, or by womankind with brute beast.” Blackstone called it “the infamous crime against nature,” 4 Blackstone, Commentaries 215, a phrase used interchangeably with sodomy at common law. Marcin, supra, at 67.
America borrowed from England this steadfast view of homosexuality as an intolerable evil. “[Sodomy] was made a felony by an English statute so early that it was a common-law offense in this Country, and statutes expressly making it a felony were widely adopted.” Rollin M. Perkins & Ronald N. Boyce, Criminal Law 465 (3d ed.1982). In its second edition, published in 1910, Black's Law Dictionary tells us that sodomy “is often defined in statutes and judicial decisions as meaning ‘the crime against nature,’ ․ or as carnal copulation, against the order of nature․” Black's Law Dictionary 1094 (2d ed.1910).
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.
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.
In this case, the Court of Civil Appeals stated that “[n]o evidence indicated that the mother's homosexual relationship, which is accepted under California law through the ‘Domestic Partnership Act,’ would have a detrimental effect on the well-being of the children.” The “detrimental effect” of such conduct is established by the great mass of Alabama law, which prohibits and condemns homosexual conduct. Courts must make decisions based on fixed principles. Judges should not make decisions based on the latest psychological or sociological study or statistical poll,10 the interpretations of which are subject to the bias 11 and philosophical leanings of the researchers,12 and which are subject to being refuted by other studies.13
Homosexual behavior is a ground for divorce, an act of sexual misconduct punishable as a crime in Alabama, a crime against nature, an inherent evil, and an act so heinous that it defies one's ability to describe it. That is enough under the law to allow a court to consider such activity harmful to a child. To declare that homosexuality is harmful is not to make new law but to reaffirm the old; to say that it is not harmful is to experiment with people's lives, particularly the lives of children.14
Blackstone sums up the duty of the judge, who is “sworn to determine, not according to his own private judgment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one.” 1 Blackstone, Commentaries 69.[1]
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