Child custody and constitutional rights

[Kermit Roosevelt]

This is why I was asking if I was crazy, because my intuition is that yes, taking religion into account there is fine, because what you're taking into account isn't religion per se but a legitimate qualification.  (If your point is that it's problematic to use religion as a proxy when the advantage is merely statistical, I'm more sympathetic to the argument, but that's not quite the point I thought we were talking about--I thought we were talking about cases where there's an actual harm to the child, at least in the form of increased risk.)  Is it obvious to you that it's improper?  (Can a state school decline to hire an evolutionary biologist who adheres to intelligent design?)  I was actually going to pose a similar hypothetical: imagine you have two parents who are otherwise identical fighting for custody, and each intends to put the child in an after-school anti-drug program.  One program is religious and one is secular.  The religious one is five times more (or less) effective.  It seems to me that the only way to be neutral here is to say, we don't care whether it's religious or not; we're interested in effectiveness because that's what relates to the best interests of the child.  Otherwise I'm not even sure how the analysis is supposed to go.  You ignore the religious program regardless of its effectiveness, so that religious-linked parenting counts for nothing?  (This is what I was saying would induce the religious to abandon their religion.)  You have a rule that it can't be a negative, so that the more effective religious program is a plus but the less effective one isn't a minus?  Those seem both non-neutral and just silly.  And insofar as we're talking about religion specifically, isn't a best interests analysis that doesn't grant an exemption for religiously-inspired conduct that harms a child clearly permissible under Smith?
 
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 Volokh, Eugene
Sent: Tue 7/1/2008 7:17 PM
To: conlawprof at lists.ucla.edu
Subject: Child custody and constitutional rights


    Well, say that you have two applicants for government employment, one religious and the other an atheist -- or one of one denomination, and the other of another.  You have credible studies that suggest that people who believe in God, or who worship one way rather than another, are more likely to be effective employees (in general, or for your particular task).  The applicants are otherwise tied in their credentials.
 
    Would we say that counting the applicant's religiosity (or particular denomination) as a factor in his favor is "neutral" and thus constitutionally unproblematic?  Would we say that "Not counting it seems to penalize a better [applicant] for being a better [applicant]"?
 
    As to the effect of inducing parents to abandon their religion on pain of losing their children, I don't see why that would happen.  Right now, there's pressure in those courts that consider religiosity for parents to become more religiously observant, and to abandon their preference for nonreligiousness.  But if one couldn't consider religiosity, there would be no benefit either from abandoning one's religion or becoming more observant than one believes is right.
 
    Eugene

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	From: Kermit Roosevelt [mailto:krooseve at law.upenn.edu] 
	Sent: Tuesday, July 01, 2008 3:41 PM
	To: lsolum at illinois.edu
	Cc: Volokh, Eugene; conlawprof at lists.ucla.edu
	Subject: RE: Child custody and constitutional rights
	
	
	I didn't mean I endorsed the preference for religion qua religion--I think that's obviously impermissible not least because it has nothing to do with the best interests of the child.  I meant the subsequent paragraphs, which were, after all, the ones followed by question marks.  But if that's what you're talking about, I don't see why it's such a gross violation or non-neutral.  If religious parenting really is better for children by whatever metric we usually use in a best interests determination, then counting it seems neutral to me.  (And if it's worse, counting that too seems neutral to me.)  Not counting it seems to penalize a better parent for being a better parent in a constitutionally protected manner, which is peculiar.  Can you explain why elements of good parenting that are associated with religion have to be excluded from the calculus?  Doesn't that have the effect of inducing parents to abandon their religion on pain of losing their children, the way you phrase it?  
	 
	Kermit Roosevelt
	Professor of Law
	University of Pennsylvania Law School
	3400 Chestnut St.
	Philadelphia Pa 19104
	215.746.8775
	 

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