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View Diary: Texas judge orders lesbian couple to split up or lose children (190 comments)

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  •  I doubt it will be. (8+ / 0-)

    Domestic relations cases are the province of state courts, and the federal courts abstain from hearing them even when they would otherwise have jurisdiction based on diversity of citizenship.  (That doesn't appear to exist here, btw.)

    This case will have to appealed through the Texas court system, and only after those appeals are exhausted can these women ask the U.S. Supreme Court to review it.  So I wouldn't expect federal court involvement unless this goes all the way up the chain in the Texas courts, the couple loses, and the Supreme Court takes the case.  That's hardly a likely prospect.

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Sat May 18, 2013 at 12:25:00 PM PDT

    [ Parent ]

    •  It wouldn't go to SCOTUS (1+ / 0-)
      Recommended by:

      without a federal question.  To the extent that this is just a matter of what is enforceable under state divorce law, there can't be an appeal to the Supreme Court.

      •  The federal question ... (7+ / 0-)

        would be the validity of such an order to move out where that order is based on the sex of the intimate partner or the sexual orientation of the parent.  If such restrictions are not imposed on straight, divorced parents, there may be an equal protection problem.

        "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

        by FogCityJohn on Sat May 18, 2013 at 12:45:43 PM PDT

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        •  As described it is not based on gender but on (6+ / 0-)

          the fact that they are not married. Maybe there is a equal protection question that could make it federal.

          Is it true? Is it kind? Is it necessary? . . . and respect the dignity of every human being.

          by Wee Mama on Sat May 18, 2013 at 12:48:07 PM PDT

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          •  Well it is a (4+ / 0-)
            Recommended by:
            Mordoch, cris0000, sb, Wee Mama

            corollary. Since the clause prohibits unmarried partners from being in residence after 9 PM,  a straight couple would be able to marry and satisfy the clause. A gay couple, in the state of Texas, does not have that option, so the issue really boils down to the gender of the partner relative to the custodial parent.

            Male+ Female= Marriage = No problem
            Male + Male = No marriage= No problem
            Female + Female= No Marriage= No problem

            I doubt she realized when she signed the contract with that clause that she would be prohibited by law from marrying her chosen partner because her chosen partner is a woman.

          •  But how can the government claim that marriage (0+ / 0-)

            in the religious sense--which is obviously the direction this judge is taking, makes a person more moral, than a person in a relationship that is not acceptable to [the judge's] religion, in a country that is not supposed to make any laws respecting or establishing any religion?

            The judge is making a religious moral judgement, and enforcing it with his governmental authority. That is a big no no.

            The judge or the plaintiff should have to provide some kind of evidence that the woman's partner poses some kind of immediate hazard to the welfare of the child, beyond, "moral outrage" based on sectarian beliefs.

            •  My understanding of the morals clause is that (0+ / 0-)

              married sex (whether from a religious or a civil marriage) is more moral than unmarried sex. The presumption I suppose is that a sexual relationship that is also a contractual one (as marriage is) is more stable and for that reason better for children. I'm not saying yay or nay on that claim - just unpacking it for what it is.

              On the other hand since the couple can't get a civil marriage in Texas, that is where an equal protection claim might enter and that could be the basis for a federal case.

              Is it true? Is it kind? Is it necessary? . . . and respect the dignity of every human being.

              by Wee Mama on Sun May 19, 2013 at 11:32:04 AM PDT

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              •  I don't buy that BS at all. (0+ / 0-)

                Married Sex is simply sex between people with a contract.

                We don't know what the private clauses might be in that contract, or what moral code people subscribe too.

                That idea is nothing more than an illusion some folks make up, to make themselves feel better about a topic they don't approve of at all--Sex.

                I suppose next the judge is going to moralize about how married people don't participate in kink.

                Morality is how you humanize another person you interact with.

                I have witnessed plenty of marriages [sadly] that did not humanize either partner.

                If the judge is looking to create a stable atmosphere for the child, perhaps he should start with making absolutely sure that neither adult parent is alienating the child from the other parent, emotionally, and that neither parent is socially harassing the other, or legally harassing the other for that matter.

        •  You're right, but you'd have to structure it as (0+ / 0-)

          an EP claim.  Typically matters of state divorce law aren't appealable to SCOTUS.  

        •  It is not like the State of Texas has tried to (5+ / 0-)

          have a law that makes homosexuality illegal ....... Oh wait, Texas tried to do exactly that in Lawrence v. Texas.

          And it feels like I'm livin'in the wasteland of the free ~ Iris DeMent, 1996

          by MrJersey on Sat May 18, 2013 at 01:47:42 PM PDT

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        •  Not uncommon re straight couples (7+ / 0-)

          at least in my experience (in NH, not Texas). "No unrelated adults shall reside in the home," etc. etc.

          It was always contentious, because the non-custodial parent was not subject to similar restrictions. Sometimes we could negotiate a variation that an unrelated adult would not stay overnight on the nights when the children were there -- and impose it on both parents. The difference is that the straight parent(s) can marry their new sweetie and then cohabitation is OK, and the LGBTQ parent(s) can't do that in Texas.

          Federal courts do not want to get involved in family law, period full stop.

          •  Yet, that is exactly the ep claim: it means the ga (9+ / 0-)

            y ex-spouse can never have another intimate relations as long as the kids are 18 (or 21 in some states).

            IOW, they are legally singled out for 18 years of sub-person status.

            •  WTF! That is just crazy. (0+ / 0-)

              Based on what claim?

              Unless the partner in question is seeing a registered sex offender or something to that effect, I don't see how the courts could justify an order without basically enforcing religious law using tax dollars.

              •  In Texas gay marriage is constitutionally prohibit (0+ / 0-)

                ed, as in many red (and some not so red) state, thanks to Karl 'I-can-elect-Bush-by-hating-on-the-gays'Rove.

                And since they can't marry, and they can't co-habitate...

                Well, I guess they could go tosleezy hotels and fight drug addicts and pimps for rooms.  That's romance!

                •  And my response to that is this: (0+ / 0-)

                  My sex-life is not a democracy.

                  I am the benevolent dictator of my body and my life.

                  The only way that Rove or anyone else for that matter could justify this is by invoking their religious morals, and that negates the argument legally, right then and there.

                  No one should have to, nor should--pay lip service to membership or adherence to a religion, especially because of the government. That is a complete obliteration of the right to freedom of and from religion, and the right to privacy.

        •  Has the court ordered that the ex-husband (2+ / 0-)
          Recommended by:
          Lilyvt, GreenMother

          is also not allowed to have a woman in the house after 9pm when the children are there? Presumably the morality clause applies to him as well...

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