Child custody and constitutional rights

Volokh, Eugene VOLOKH at law.ucla.edu
Tue Jul 1 15:38:20 PDT 2008


    I second Larry's first thought, and I'm puzzled by the "background
property laws" analogy.  The background property laws are entirely
content-neutral and religion-neutral in application.  The "best
interests" test, if applied without any concern for constitutional
matters, requires a government actor to decide which religious views and
which secular ideologies are better than others -- which have a
communicative impact that yields better ideas and therefore better
actions.
 
    The better analogy would be a "background property law"
(fortunately, one that doesn't exist, outside the highly troublesome
area of broadcast regulation) in which disputes between speakers were
resolved by asking whose speech is in the "best interests" of listeners,
or property disputes between two rival church claimants were resolved by
asking whose religious teachings would best serve the "best interests"
of parishioners.  That would be clearly unconstitutional, no?
 
    Eugene


________________________________

	From: Lawrence Solum [mailto:lsolum at gmail.com] 
	Sent: Tuesday, July 01, 2008 2:54 PM
	To: Kermit Roosevelt
	Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
	Subject: Re: Child custody and constitutional rights
	
	
	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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	-- 
	Lawrence Solum
	Associate Dean for Faculty and Research, John E. Cribbet
Professor of Law, & Professor of Philosophy
	Co-Director, Institute for Law and Philosophy
	University of Illinois College of Law
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