Oct 01, 2004  |  By: MUBARAK DAHI  | COMMENTS     

IN AN ODD legal twist on gay rights that reflects both the mood of the legal system as well as the changing level of tolerance in polite American society, the Idaho Supreme Court ruled at the end of September that a parent’s sexual orientation alone cannot be the basis for making child custody decisions in that state.

However, the court then refused to apply its progressive ruling to the particular case that prompted the court’s review.

It appears to be a situation where the court feels compelled to issue the “right” legal answer on a gay and lesbian subject, but then finds a way to squirm out of enforcing it, using a combination of legal loopholes and rationalizations.

In the end, it’s hard not to conclude that the court wants to officially be on the right side of history, but can’t quite yet get itself to act accordingly.

That conundrum is not an historical anomaly. All you have to do is look at the history of favorable court rulings in race cases in this country, and then the history of how courts and people subverted those rulings, to understand how a court can say one thing that seems so enlightened, and in the same breath do something totally opposite, that feels so prejudicial.

Still, even though the court’s actions didn’t live up to its words, and the final outcome remains devastating to the gay dad at the heart of the matter, the ruling is still a sign of progress on gay rights.

It’s just the kind of slow and painful progress that the citizens of conservative, middle America states like Idaho are finally being forced to grapple with.

THE CASE THAT forced the issue to Idaho’s highest court was the story of Theron McGriff. In 1997, McGriff and his wife divorced. Three years later, McGriff became involved with a man, who eventually became his partner.

Initially, McGriff and his ex-wife shared joint custody of their two children after their divorce. But when the children’s mother discovered that McGriff was romantically involved with a man, she petitioned the court for sole custody of the children, based on the fact that McGriff is gay.

In the bitter battle for the kids, a court-appointed therapist recommended both parents share joint custody of the children. The therapist testified to the positive relationship between McGriff and his children, and noted that the children themselves wanted the joint custody to continue.

However, in 2002, a trial court granted the mother sole legal custody of the children. Even worse, in a move of unabashed homophobia, the court went further, ruling that McGriff couldn’t even visit his children if he was living with a male partner.

McGriff challenged the ruling, taking it all the way to the state’s supreme court.

It was an important decision for the state of Idaho, because it was the first-ever decision by the state’s supreme court on a matter involving a gay or lesbian parent.

On paper, the court made the right decision, ruling that a parent’s sexual orientation “cannot be the basis for awarding or removing custody.” It stressed that the custody decisions must be guided by one major principle: the welfare and best interests of the child.

“Only when the parent’s sexual orientation is shown to cause harm to the child, such that the child’s best interests are not served, should sexual orientation be a factor in determining custody,” the court concluded.

Interestingly, the court also said that custody decisions must abide by the recent United States Supreme Court decision in Lawrence vs. Texas, which struck down sodomy laws and essentially said that gays have a constitutionally protected right to enter into same-sex relationships.

YOU’D THINK THAT, after making such a progressive argument, and even addressing the issue being in a same-sex relationship is enough to deny child custody, the state supreme court would have struck down the lower court’s ruling in McGriff’s custody battle. The lower court ruling was obviously based solely on issues around McGriff’s being gay.

But for all the high-mindedness in its ruling, the Idaho Supreme Court didn’t have the backbone to enforce its own decision. Sadly, the higher court decided to leave the lower court ruling in place, and deny McGriff custody to his children.

Amazingly, the high court claimed that the custody decisions by the lower court were based on ...