Free speech and child custody

Tue Feb 12 17:31:19 PST 2002

I agree with this.

If a court decides to deny custody  because staying with a given parent exposes the child to  a supposedly undesirable view of homosexuality, that raises, to my mind, the same exact issues as the Coeur d'Alene and Communist custody cases.  The situation may be different if the court bases its denial on other types of grounds (e.g. - that the child would be better off with "role models" of both sexes rather than just one). These other grounds may be bad policy and may raise other types of constitutional concerns, but they probably would not violate the First Amendment. 
    -----Original Message-----
    From: Tobias Barrington Wolff <tbwolff at UCDAVIS.EDU>
    To: CONLAWPROF at listserv.ucla.edu <CONLAWPROF at listserv.ucla.edu>
    Date: Tuesday, February 12, 2002 5:19 PM
    Subject: Re: Free speech and child custody

    Sometimes I feel like the gay voice in the wilderness, but I would feel remiss if I did not point out the practice -- pervasive in many States -- of denying custody and visitation to gay and lesbian parents, on the sole grounds that "exposing" a child to, or "teaching" a child about, "overt homosexuality" is harmful or otherwise not in the child's best interest.  The First Amendment issue, it seems to me, is equally present in such cases.

    -- T

    At 06:06 PM 2/12/2002 -0500, you wrote:

        It seems that preventing teaching a child crimes (racist-based behavior, yelling fire in a theater) is easier to reconcile with the First Amendment that would be preventing teaching a child "about religion" (there is no God, denomination X is the only true path to salvation).

        Jim Maule
        Professor of Law, Villanova University School of Law
        Villanova PA 19085
        maule at law.villanova.edu
        http://vls.law.vill.edu/prof/maule
        President, TaxJEM Inc (computer assisted tax law instruction) (www.taxjem.com)
        Publisher, JEMBook Publishing Co. (www.jembook.com)
        Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
        Maule Family Archivist & Genealogist (www.maulefamily.com)

        >>> VOLOKH at MAIL.LAW.UCLA.EDU 02/12/02 05:54PM >>>
                I've been planning to write an article on this general issue for
        years now -- it's a remarkably under-discussed area -- but somehow could
        never get it together, perhaps because I'm really not sure what the right
        answer is.  In any case, here's the latest incarnation.  Cf. Donaldson v.
        Donaldson, 38 Wash. 2d 748, 231 P.2d 607 (1951) (trial court decree
        "required plaintiff to refrain from educating or training the child to
        become a communist or teaching him a disbelief in the existence of God,
        further directing plaintiff to teach the child love and respect for the
        United States of America."); Ehrenpreis v. Ehrenpreis, 106 N.Y.S.2d 568
        (1951) (implying that child can be taken away from Communist mother -- "But
        does that mean, that if the charges of the defendant are sustained and the
        facts warrant, that this court has no power to put an end to the communistic
        nurturing of a young American or to remove him from the influence and
        surroundings of a communist home and a communist mother?").

        http://www.spokesmanreview.com/news-story.asp?date=020302&ID=s1095810

        Sunday, February 3, 2002
        Racist seeks more time with kids . . .

        Bill Morlin - Staff writer

        One of the nation's leading racists and anti-government activists goes to
        court Monday in Coeur d'Alene in an attempt to win joint custody of his two
        young daughters.

        Louis R. Beam Jr. -- former Aryan Nations ambassador and Texas Ku Klux Klan
        leader -- says he should be allowed more time with his daughters, despite
        his racial and political views.

        His former wife is fighting Beam in court, and filed a counterclaim that
        says Beam is indoctrinating the girls with racist beliefs. She wants the
        court to terminate Beam's contact with the children.

        Beam filed his legal action in Kootenai County, asking an Idaho court to
        liberalize a Texas judge's 1997 order ending his 10-year marriage to Sheila
        Toohey, his fourth wife.

        They were married shortly before Beam made the FBI's Ten Most Wanted
        Fugitives list on charges of plotting to overthrow the U.S. government. He
        later was acquitted. . . .

        Extremist expert Joe Roy of Klanwatch says Beam is among the three most
        prominent racists in the United States. . . .

        Toohey says in court papers that she's afraid of Beam, and moved from Texas
        to Idaho in 1999 because he told her that a race war would break out in
        2000.

        She says Beam warned her that he and his "armed comrades" would come and
        "forcibly remove the children" if she didn't leave Texas before Y2K, court
        documents say.

        Now, she alleges, her daughters return home from their visits with Beam with
        racist ideas he has "planted in their heads."

        He once gave the children KKK "blood cross" necklaces, Toohey says in court
        documents. One daughter wanted to wear the necklace to school, not
        understanding its racist symbolism, Toohey says.

        A teacher says in another court document that one of the girls drew
        swastikas at school in Texas, prior to moving to Idaho.

        On another occasion, Toohey claims, Beam told his daughters they couldn't go
        in a motel swimming pool "because blacks and mud people" had contaminated
        the water.

        During a "history lesson" he gave his daughters, Beam told them Hitler "was
        not a God, just a great man," Toohey contends in the court documents. He
        also told his daughters that the United States sent soldiers to Europe in
        World War II to "kill young Aryan men for money," the documents say.

        One of her daughters has performed Nazi salutes "as though it is a normal
        gesture," Toohey claims in court papers.

        Her Coeur d'Alene attorney, Kevin Waite, argues that exposing children to
        racist, anti-government beliefs constitutes neglect under Idaho law. . . .

        At the seditious conspiracy trial in Fort Smith, Ark., Beam acted as his own
        attorney, while many of his 14 co-defendants, including Butler, hired
        lawyers.

        Beam told jurors that federal prosecutors were trying to paint him and
        Butler as "enemies of this government."

        "This is the truth," Beam told the jury. "The federal government is my
        enemy, and by the time this trial is over you will understand that the
        government is your enemy, too."

        All of the defendants, including Beam, were acquitted. Beam walked out of
        the courtroom, stood next to a Confederate Army statue and vowed to continue
        his fight against the government, but said he'd do it underground. . . .

    * * *
    Tobias Barrington Wolff
    Assistant Professor of Law
    U.C. Davis Law School
    530-754-6981

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