Constitutional Right Not to Work?

[Paul Finkelman]

13th Amendment?
paul finkelman

Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu
>>> <marty.lederman at comcast.net> 10/24/06 4:24 PM >>>
John Fee writes:  "For example, the government can't normally order a
person to work, . . . ."

Why not?  

See, e.g., Butler v. Perry, 240 U.S. 328 (1916).



 -------------- Original message ----------------------
From: "John Fee" <Feej at lawgate.byu.edu>
> I don't think it is possible to sustain a sensible "best interests of
> the child" test without examining some parental behavior that is
> constitutionally protected (protected in the sense that the government
> could not mandate or prohibit the behavior).  For example, the
> government can't normally order a person to work, yet I  think a court
> should consider a parent's refusal to work (either to provide
financial
> support, or to perform household jobs) as relevant to child custody. 
> Likewise, I think it should be relevant if a parent has a habit of
> saying abusive and mean things to children regularly, even if such
> speech is constitutionally protected in the sense that government
can't
> put a person in jail for it.
> 
> Just as with government employment, this is a special context, in
which
> consideration of a person's behavior, including some constitutionally
> protected behavior, is unavoidable and therefore sometimes
permissible. 
> The difficulty is determining which constitutionally protected
decisions
> should be irrelevant to child custody.  I believe that religion should
> be irrelevant, not because it does not affect the best interests of
the
> child, but because of special institutional concerns inherent in the
> Establishment Clause, and the probability that any kind of religious
> test would be systemically misused.  I am not yet convinced that a
> parent's speech or intimate association's should be irrelevant.
> 
> John Fee
> BYU Law School
> 
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