Denver, CO – Today the Colorado Court of Appeals issued a 50-page opinion in the case involving a mother who was ordered by a judge to “make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic.” While the court vacated that ruling, it also sent the case back to the trial judge to determine the definition of “homophobic” and whether the child would be harmed by being introduced to whatever “homophobic” teachings and upbringing means. The Court also affirmed the trial court’s ruling that granted a 50/50 custody split between the child’s Christian mother, Dr. Cheryl Clark, and a nonparent lesbian, Dr. Elsey McLeod. Liberty Counsel filed an amicus brief in support of Dr. Clark, requesting the Court to reverse the order.

Dr. Clark entered into a lesbian relationship with Dr. McLeod. Dr. Clark legally adopted a child from China. Dr. McLeod did not participate in the adoption and had no parental rights over the child. Dr. Clark became a Christian and was convicted that the lesbian relationship was wrong, and thus left Dr. McLeod. After some time, Dr. McLeod sued for parental rights and requested that Dr. Clark not expose the child to what she called “homophobic upbringing or teaching.” This request was made because Dr. Clark’s church maintains a rack in the lobby which contains literature from Focus on the Family and Promise Keepers. The trial court granted Dr. McLeod’s request. Under the order, Dr. Clark could be found in contempt when she and her daughter listen to the pastor preach about traditional marriage, or if they read chapter one of the book of Romans or listen to some Christian radio or television programs.

Today’s court of appeals decision is troubling. First, the court adopted a so-called psychological parent doctrine, meaning that parental rights can be established merely by an emotional attachment between a nonparent and a child. Thus, the Court granted parental rights to Ms. McLeod, a mere third party who has no legal relationship to the minor child. Second, the Court did not outright reverse the ruling about “homophobic” instruction. Instead, the Court sent the case back to the same trial judge to define “homophobic” and to determine if the child would be harmed by such “religious instruction.” It is possible the trial court will not reinstate this section of the order, or if it does, that the same court of appeals will later reverse it. But, the court of appeals should have outright condemned this ruling! At the end of the opinion, the Court mentions a First Amendment argument raised by Liberty Counsel and notes that Dr. Clark may present this argument when the case is returned to the trial court.

Mathew D. Staver, President and General Counsel of Liberty Counsel, commented that “Parental and religious rights must be vigorously protected. Courts must respect the twin pillars of our society -- parental rights and religious freedom.”