Constitutional Right Not to Work?
pfink at albanylaw.edu
Tue Oct 24 14:12:14 PDT 2006
President William McKinley Distinguished Professor of Law
and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York 12208-3494
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, . . . ."
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
> 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
> put a person in jail for it.
> Just as with government employment, this is a special context, in
> consideration of a person's behavior, including some constitutionally
> protected behavior, is unavoidable and therefore sometimes
> The difficulty is determining which constitutionally protected
> should be irrelevant to child custody. I believe that religion should
> be irrelevant, not because it does not affect the best interests of
> 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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