Child custody and constitutional rights

Tue Jul 1 14:54:17 PDT 2008

Just a quick thought: I wouldn't say that Kermit is crazy, but I would say
that this preference for religious parenting is inconsistent with liberty of
conscience and would constitute a gross violation of the autonomy of the
parent who was denied custody.  It is certainly not neutral as between
religious and nonreligious parents & it would coerce religious observance by
those who might lose their children otherwise.  On second thought, perhaps
Kermit is crazy.

On 7/1/08, Kermit Roosevelt <krooseve at law.upenn.edu> wrote:
>
>  Am I crazy to say that seems okay in principle?  I have concerns, of
> course, about whether the hypothesized evidence is actually any good, and
> also about singling out religion as a factor--if other relevant factors are
> not getting the same kind of attention, then I would be suspicious.  But in
> an otherwise completely fair world, I think it's okay.  Maybe given the
> unfairness in this world and the potential for abuse we should have a
> prophylactic rule prohibiting consideration of religion, but that's a
> slightly different argument.  But generally I don't think the government has
> an obligation to ensure that exercises of constitutional rights don't
> disadvantage people in any way, and disadvantage vis-a-vis a spouse in a
> custody dispute determined according to the best interests of the child
> strikes me as okay.  It seems sort of like the background property laws that
> put Rupert Murdoch in a much better position than me with respect to his
> ability to speak.  They work to my disadvantage, but they don't violate the
> First Amendment.
>
> Kermit Roosevelt
> Professor of Law
> University of Pennsylvania Law School
> 3400 Chestnut St.
> Philadelphia PA 19104
> 215.746.8775
>
>
>  ------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu [mailto:
> conlawprof-bounces at lists.ucla.edu] *On Behalf Of *Volokh, Eugene
> *Sent:* Tuesday, July 01, 2008 4:08 PM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* Child custody and constitutional rights
>
>
>      In my article, I mention -- among other things -- some 70 or so
> decisions since 1970 (including many in the last 10 years) that have favored
> more religious parent over the less religious parent, specifically because
> the parent is more religious.  (I'm sure there are many others that don't
> get appealed, that otherwise don't make Westlaw and Lexis, or in which the
> judge doesn't mention this preference.)
>
>     Assume a judge has what he thinks is credible psychological and
> criminological evidence that suggests that a less religious upbringing is
> correlated with more juvenile deliquency, more unwed pregnancy, more adult
> unhappiness, more adult criminality, and more adult drug and alcohol
> addiction than the more religious upbringing.  This is not a ridiculous
> position; I'm not religious myself, but I can't dismiss out of hand the
> possibility that some such correlation might be found.  Would it then be
> permissible for the court to weigh a parent's choice to be less religious --
> and to raise the child less religiously -- as a factor against the parent?
>
>     What if there were studies that showed correlations between particular
> religious belief systems and various forms of misbehavior and unhappiness by
> children and the adults they'll become, e.g., higher suicide, crime,
> addiction, spousal or child abuse, etc. rates, among Catholics,
> fundamentalists, Sunni Muslims, to the point that a court concludes it's
> more in the child's best interests to be raised by the parent who will teach
> the child one religion than by the parent who will teach the child the
> other.  Would it then be permissible for the court to weigh the parent's
> religious teaching as a factor against the parent?
>
>     Or say we find the same among parents who teach children
> anti-American, anti-government, or anti-authority attitudes, perhaps because
> the children become more likely to rebel against the legal system (as
> adolescents or adults), or to feel alienated from their country and thus
> less happy.  Would it then be permissible for the court to weigh the
> parent's ideological teaching as a factor against the parent?
>
>     Eugene
>
>  ------------------------------
> *From:* Kermit Roosevelt [mailto:krooseve at law.upenn.edu]
> *Sent:* Tuesday, July 01, 2008 12:04 PM
> *To:* Theodore Ruger; Volokh, Eugene; conlawprof at lists.ucla.edu
> *Subject:* RE: A correction about the firearms studies cited below
>
>
>  I think that has to be right.  Most of the ways in which people are bad
> parents are probably constitutionally protected in that the government
> couldn't order parents to behave differently, right?  Or at least many of
> them are.  You couldn't have a law requiring parents to spend a certain
> amount of time interacting with their children, or monitoring their progress
> in school, or attending extracurricular activities, etc., but I can't
> imagine that giving you an argument that, e.g., your first amendment right
> not to speak is being burdened because the court thinks it's in the best
> interests of the child to go a parent who pays attention to the child rather
> than ignoring it.
>
>  Kermit Roosevelt
> Professor of Law
> University of Pennsylvania Law School
> 3400 Chestnut St.
> Philadelphia Pa 19104
> 215.746.8775
>
> ------------------------------
> *From:* conlawprof-bounces at lists.ucla.edu on behalf of Theodore Ruger
> *Sent:* Tue 7/1/2008 2:51 PM
> *To:* Volokh, Eugene; conlawprof at lists.ucla.edu
> *Subject:* RE: A correction about the firearms studies cited below
>
>
>  Eugene's points are helpful and his knowledge of the firearm risk studies
> far exceeds mine, so I'll exercise the law professor's prerogative to
> rephrase my original constitutional law point in abstract terms unburdened
> by actual data:
>
> Suppose there *is* generally accepted evidence that a given
> constitutionally-protected behavior is harmful and/or risky to children in
> the home.  It seems entirely plausible that notwithstanding the first-order
> constitutional protection for such conduct, family court judges ought to be
> able to consider such harm or risk in a "best interests of the
> child" custody inquiry.  Any other more categorically exclusionary approach
> would undermine the whole purpose of the "best interests" balancing that
> almost every state has adopted in child custody cases.
>
> Ted
>
>
>
>  ------------------------------
>  *From:* conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> *Sent:* Tue 7/1/2008 2:31 PM
> *To:* conlawprof at lists.ucla.edu
> *Subject:* A correction about the firearms studies cited below
>
>
>
>         My apologies for posting purely about the public health /
> criminology question, but since a factual assertion was made on the
> list, I thought I'd respond briefly to try to set the record straight.
> I will respond shortly to the pure constitutional law question, without
> troubling my fellow list members further about the factual dispute."
>
>         One of the posts asked, "What do judges do, then, with
> population studies that show that the presence of guns in the home is an
> increased risk factor for homicide (slight) and male suicide (tenfold)?
> It is possible, in theory, to cast doubt on the
> methods/findings/significance of the studies, and if so judges ought to
> give them little or no weight on that basis.  But to categorically
> exclude all consideration of firearm risk would give 2A rights more
> sweeping protection than courts give parental speech and religion in
> custody cases."  The author kindly posted me to the study, which was at
> http://aje.oxfordjournals.org/cgi/reprint/160/10/929?eaf .
>
>         There are, however, two massive problems with the study, one
> smaller problem, and one problem with the interpretation.
>
>         1.  The study failures to control for some obvious confounding
> factors that might lead to correlation in the absence of causation.
> Consider, for instance, criminal record and its size.  Criminality
> increases the risk of homicide and, less obviously but still quite
> clearly, suicide (see, e.g.,
> http://injuryprevention.bmj.com/cgi/content/full/12/suppl_2/ii17).  And
> criminals are also probably more likely to own guns, both as tools of
> the trade and to defend themselves against their criminal business
> acquaintances.  (The great majority of all guns are owned by law-abiding
> citizens, but that's consistent with an elevated rate of gun ownership
> among the criminal minority.)  Yet as best I can tell the study
> completely fails to control for criminal record.
>
>         2.  Relatedly, the study doesn't distinguish people who bought
> guns precisely in order to commit suicide -- it doesn't even do this at
> the crude level of distinguishing recent purchasers from longstanding
> owners (unless I missed something while reading the study).  It thus
> might not be gun ownership that causes suicide, but the desire for
> suicide that causes gun ownership and that in turn causes suicide (and
> would cause suicide even if there was no gun in the home in the first
> place, since the person could buy a gun, or switch to another highly
> reliable form of suicide).
>
>         3.  The smaller problem:  A common problem in these studies is
> that small levels of underreporting of gun ownership by one group can
> throw off the results considerably.  People tend to deny gun ownership
> for various reasons, whether because they're afraid of being condemned
> by the questioner, because they are afraid the gun might be illegally
> owned, because they just don't like answering questions about private
> matters, or because they don't consciously focus on the gun's being in
> the home when it's owned by some other household member.  Of course,
> this denial is disproportionately likely among people in whose homes
> there hasn't been a visible gun-related incident -- here, the "control"
> group, of people in homes where there were "other decedents."  (Very few
> of these other decedents are likely to have died in firearms accidents,
> because firearms accidents are less than 0.05% of all deaths, and are a
> higher but still tiny fraction of all home deaths.)
>
>         Note that the reported firearms ownership rate among this group
> was 32%, while the article's own report of the firearms ownership rate
> among the population at large is about 40% (consistent with national
> phone surveys, though the data I've seen suggests that 5-10% of
> respondents falsely deny gun ownership even there).  If the actual
> firearms ownership rate among that group is actually 40% rather than
> 32%, that would throw off the odds ratio by a factor of 1.4 (= (68%/32%)
> / (60%/40%)) -- not enough by itself to explain the 10-fold odds factor
> difference, but substantial when considered in conjunction with the
> possible other
>
>         4.  The interpretation problem:  It's important to recognize
> that the odds ratio doesn't directly measure the increase in risk.
> Rather, it's the ratio of the odds -- the odds being p/(1-p), where p is
> the probability -- which is generally much higher than the ratio of the
> risks.  Thus, consider the cruide odds ratio in table 3 for "suicide vs.
> other causes," 5.6.  This is the ratio of the odds for (reported)
> firearms ownership among suicide decedents and the odds for (reported)
> firearms ownership among other decedents from table 2 -- not 72.4%/32%,
> but rather (72.4%/27.6%) / (32%/68%).  So a 2.25 ratio in gun ownership
> (72.4%/32.0%) yielded what is roughly a square of that ratio in gun
> ownership odds ratio.  Likewise, the (partly) controlled ratio for men
> of 10.4 likely corresponds to a magnitude difference in suicide risk of
> much less than 10.4.
>
>         This doesn't directly tell us the answer to the constitutional
> question, but it does weaken the strength of the factual foundation for
> the argument, it seems to me.
>
>         Eugene
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