Elian Redux (Satmar hypo)

[Volokh, Eugene]

        Again, I risk straying from the list topic with this, but it seems
to me that *of course* Castro's Cuba is worse than the Satmars, for the same
reason that (say) apartheid South Africa was worse than some racist
corporation or racist religious community in the U.S.  The Satmars, for all
their flaws, do not to my knowledge have the general power to imprison,
torture, or even kill someone who flouts their will, or to physically block
their members from leaving.  They may exercise what many might think is
morally improper psychological and social power -- but that is just *not*
the same as the power wielded by governments with guns and prisons.

        And to the extent that an evaluation of the best interest of the
child (if that is the right test to apply here, and I'm not sure that it is)
includes the interest of the child in liberty, psychological and social
constraints on liberty seem to me to be *much* less significant than the
physical constraints on liberty (imposed on children and on the adults into
whom they'll grow up).  Sandy, let me ask you a question:  If this was a
true "best interests of the child" inquiry, for instance if a father and
mother were divorcing and the question is who should have custody, would you
really weigh the desire of one parent to raise a child in the Satmar
community more heavily against the parent than his desire to raise the child
in Cuba?  What about his desire to, say, raise a black child in a racist,
even seriously racist American community (though not one which is subject to
Jim Crow laws) as opposed to his desire to raise the black child in
apartheid-era South Africa?

        It seems that the Juan Miguel's claim (which I do think is strong)
must rest on the application of something much more pro-parent than a "best
interest of the child" standard.


Sandy Levinson writes:

> Assume that a mother flees the restrictive world of the Satmar Chassidic
> community with her six-year-old child in tow.  As she arrives at the home
> of her secular Jewish relatives (who despise the Satmars and everything
> they stand for), she dies.  The father shows up, asking for the child.
> The relatives refuse, saying (altogether correctly, from my own
> perspective as a secular Jew), that the child would have a far better life
> away from the totalitarian (see Erving Goffman for the definition of
> "total communities")  confines of the Satmar world.  Does this support a)
> the grant of custody to the secular relatives; b) a decision by a judge
> that it would indeed be in "the best interests of the child" to be raised
> in the secular (or, to make it slightly less loaded, the Conservative)
> environment of the relatives?
>
> Eugene, no doubt, will say that Castro's Cuba is altogether worse than the
> Satmars.  Frankly, I tend to doubt that.  (Perhaps it's marginally worse.)
> And, of course, we don't know what Cuba would be like if it weren't
> victimized by the American embargo (or how much worse the Satmars would be
> if they weren't the beneficiaries of New York political largesse).
>
> What, if anything, am I missing?
>
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