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A judge’s order prohibiting a Denver woman from teaching her daughter that homosexuality is wrong has touched off a legal battle with the issue of religious freedom at its core. The plaintiff in the case, Cheryl Clark, a former lesbian turned straight Christian, believes the judge went too far in banning her right to expose her 8-year-old adoptive daughter to certain Christian beliefs-in this case that homosexuality is wrong. She has filed an appeal with the Colorado Court of Appeals. In re the Interest of ELMC, No. 03CA 1211. Clark’s appeal revolves around a custody dispute with her former partner, Elsey McLeod, who helped raise the child for seven years and has joint custody of the girl. The sticking point is a court order issued earlier this year in which District Judge John Couglin gave Clark sole responsibility for the child’s religious upbringing, but prohibited her from exposing the child to anything “that may be considered homophobic.” Constitutional issues Clark’s attorney, James Rouse of Denver’s Rouse and Associates, said that the judge’s order violates Clark’s First Amendment right to freedom of religion, and her 14th Amendment right to direct the upbringing and education of her child. “Religious conservatives are not typically homophobic in their behavior, even if they view homosexual activity as morally wrong,” Rouse wrote in a brief. “While Clark has no intentions of exposing her child to anything inappropriate, the order itself is a breathtakingly broad restriction on the fundamental rights of Dr. Clark and her daughter.” McLeod’s attorney, Gina Weitzenkorn of Denver’s Mills & Weitzenkorn, declined comment. “For a court to tell a parent that you may not expose your child to certain religious teachings essentially injects the state into religion,” said Florida attorney Matthew Staver. His Orlando, Fla.-based law firm, Liberty Counsel, takes up conservative Christian causes and is assisting in the Clark appeal. “If we allow the government to tell us what parts of our religious doctrine are permissible, then we’ve violated the most fundamental premise of our First Amendment-that government may not establish a religion, or dictate to our conscience how we must believe about transcendent issues.” But family law expert Phyllis Bossin of Cincinnati’s Phyllis G. Bossin Co. said she doesn’t think Couglin was interfering with religion in the Clark case, only trying to preserve the relationship between the child and the other parent. Bossin, who chairs the Family Law Section for the American Bar Association, said that in child custody cases, when determining the interests of the child, the courts often put restrictions on people’s behavior and take away certain freedoms. “You do walk a very fine line between what is freedom of religion or freedom of speech,” Bossin said. “But once you’re in divorce court, the courts can do things that they wouldn’t do to you or me. In the best interest of the child, you lose some of the freedoms you might think that you ordinarily have.” For example, Bossin said, in a 1993 custody dispute between a Catholic father and Jehovah’s Witness mother, the Ohio Supreme Court ruled that it is unconstitutional to deny any parent the right to expose their children to different religions, unless you can prove that certain beliefs have an adverse affect on the child. What is homophobia? Staver, who filed an amicus brief supporting Clark’s appeal, argues that Couglin’s order is too vague because the word “homophobic” can have different meanings, from fearing homosexuals to disagreeing with their lifestyle. Depending on how someone interprets the word, Staver said, Clark could be held in contempt of court for listening to a Christian radio station where homosexuality is condemned or for reading her daughter Bible verses that condemn homosexuality. “This mother potentially faces contempt of court for almost anything she does or any place that she takes her child which may be religious in nature,” Staver said. Bossin disagrees. “I think homophobic has a very specific meaning . . . it means an irrational fear of homosexuality,” she said. Couglin “is saying you can teach Christianity without teaching the child to hate, or to have fear of the other parent . . . .I think he was looking out for the relationship with the other parent.” Constitutional expert Robert Long of Washington’s Covington & Burling, who worked on the Lawrence v. Texas sodomy case, said he hasn’t heard of a case like Clark’s. “I can’t think of any precedent for this,” he said. “This case to me seems like a step beyond what we said in that brief.” Baldas’ e-mail is [email protected].

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