Harris County judge Charley Prine, a Republican judge in Texas, is under fire for a clearly homophobic order barring a gay father from leaving his children alone with his husband. William Flowers (pictured, left below) and Jim Evans (right) were legally married in Connecticut and are appealing the order that says that the children cannot be left alone with with any man who is not related to them by blood or adoption unless his ex-wife consents.
William divorced Lacey Flowers in 2004, and they agreed that their three children should stay with her. When William Flowers later changed his mind and sued for custody, the case went to a jury which ruled in favor of the mother while allowing the father regular visits. That clearly did not sit well with Prine who issued the order. Such restraints are used in cases where there is evidence of child abuse or danger. Prine appears to view a gay couple as presumptively dangerous to children.
Ironically, if Prine wanted to trigger a fight over same-sex marriage, he could have simply added a “morality clause” to the ruling prohibiting the presence in the household of people with whom the parent is having a “dating or intimate relationship” or those to whom the parent is not related “by blood or marriage.” Since Texas does not recognize same-sex marriage, this would have triggered a fight over the application of the full faith and credit clause. I have always been somewhat skeptical of the use of the full faith and credit clause to force the recognition of same-sex marriage on states like Texas. There has long been a debate over a public policy exception under the clause.
Under either the current order or a morality clause, there remains a variety of questions from equal protection to privacy to full faith and credit which would have to be litigated. It could prove to be a significant case as the courts slowly deal with the continuing prejudicial treatment of gay and lesbian couples.
Prine lists his support for Rick Perry and Republican candidates on his Facebook and other sites. He is a graduate of South Texas Law School.