Free speech and child custody
isomin at FAS.HARVARD.EDU
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.
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.
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).
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>>> 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?").
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
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
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
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
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
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
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