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
_______________________________________________
To post, send message to
Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or
get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
Please note that messages sent to this large
list cannot be viewed as private. Anyone can subscribe to the list and
read messages that are posted; people can read the Web archives; and
list members can (rightly or wrongly) forward the messages to others.
_______________________________________________
To post, send message to Conlawprof at lists.ucla.edu
To subscribe, unsubscribe, change options, or get
password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
Please note that messages sent to this large list cannot
be viewed as private. Anyone can subscribe to the list and read
messages that are posted; people can read the Web archives; and list
members can (rightly or wrongly) forward the messages to others.
--
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
504 East Pennsylvania Avenue
Champaign, IL 61820-6909
lsolum at gmail.com or lsolum at illinois.edu
--
http://lsolum.typepad.com/legaltheory/
(blog)
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=327316
(ssrn page)
http://home.law.uiuc.edu/~lsolum/
(personal home page)
http://www.law.uiuc.edu/faculty/DirectoryResult.asp?Name=Solum,+Lawrence
(homepage at the University of Illinois College of Law)
http://www.phil.uiuc.edu/faculty/list/Solum/index.htm
(homepage at the University of Illinois Department of
Philosophy)
http://www.pbase.com/lsolum/root
(photography galleries)
Assistant: Amy Fitzgerald
(217) 333-9115 / amfitzge at law.uiuc.edu
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/conlawprof/attachments/20080701/c53c9a9b/attachment.htm
More information about the Conlawprof
mailing list