Child custody and constitutional rights

Mitch Berman MBerman at
Wed Jul 2 09:15:00 PDT 2008

I'm coming to this discussion late, so apologize if I'm not quite
getting the issue or am overlooking relevant posts.  That said, I don't
see how we can choose between Eugene's options without articulating
pretty clear and precise definitions of the relevant concepts, in this
case "neutrality" and "penalty."  And Larry Solum asked, in a post in
this thread, whether Kim's proposal would "coerce" religious observance.
So we need an account of "coercion" too.


These concepts have been explicated in the literature on the
unconstitutional conditions problem (or, as I prefer to call it, the
conditional offer problem).  Here's the account I provided in "Coercion
Without Baselines," 90 Geo. L.J. 1 (2001):


1. A penalizes B's doing of x iff A treats B less well than A would have
had B not done x, for the purpose of causing B to suffer on account of
doing x or for the purpose of discouraging the doing of x by B or by any
other party.  


To make this clearer, consider three cases in which A (the state) treats
B less well than A would have had B not done x. (1) "Klan": B joins the
Klan, and A does not hire B (e.g., as a police officer).   (2) "Murder":
B commits a murder, and A imprisons or executes B.  (3) "Dole": B lowers
its minimum drinking age below 21, and A gives B less money for highway


I assume it's pretty clear that A penalizes B in "Murder" and "Dole."
(A treats B less well than A otherwise would have, and that less good
treatment is not explicable except insofar as A wants B to suffer and/or
wants to deter B's behavior.) In "Klan," in contrast, it is plausible
that A's reasons (or but-for reasons, if it matters) do not include
those two purposes: A could be motivated by the belief that membership
in the Klan makes one less suited for the job.  (This is why Ilya's
claim that the First Amendment forbids the government from imposing a
disadvantage on someone "because" she has chosen to exercise a
constitutional right cannot stand without a more precise specification
of the causal explanation he wants "because" to stand for.) 


2. Part of what it means to have a constitutional right is that the
state cannot penalize its exercise.  By hypothesis, the 21st Amendment
confers on B, a sovereign state, a constitutional right to set its own
MDA.  But B, an individual, does not have a constitutional right to
murder someone.  That's why "Dole" involves an unconstitutional penalty
(and why the case was wrongly decided), whereas "Murder" involves a
constitutionally permissible penalty. 


3. Coercion is the wrong of threatening what it would be wrong to do.
Therefore a threat to impose a penalty is coercive, hence wrongful.


In the child custody hypos-where the state takes religious exercise or
gun ownership into account-there will be some cases in which this factor
makes the difference to the outcome.  In those cases, the state treats B
less well because of B's doing of something that is constitutionally
protected. (That's arguably true even in the not-outcome-determinative
cases, but I put that to the side.)  But presumably, the state's
purposes are not to cause B to suffer (as in "Murder") or to discourage
B's exercise of his right (as in "Dole.")  Rather, the child custody
cases are like "Klan," and therefore do not involve the imposition of a


That is not to say, however, that the child custody cases are
necessarily constitutionally permissible.  My argument that any
constitutional right entails a right that its exercise not be penalized
(in the sense of penalty just provided) is trans-substantive: it claims
to say something that is true across rights.  But rights can also be
violated by state action that does not amount to a penalty.  It can be
part of a given right that the state not take action that has certain
effects or that is engaged in for certain purposes.  Unfortunately,
whether this is so in a given case cannot be analyzed
trans-substantively.  Individual rights differ in the protection they
afford right-holders


For example, if the pre-Smith free exercise jurisprudence was correct,
then the constitutional right to the free exercise of one's religion
confers unusually strong protection against state action on the
dimension of effects.  And most of the First Amendment rights are
generally thought to constrain governmental purposes in ways that
several other constitutional rights do not: for example, the state is
permitted to try to persuade persons (by non-coercive offers) not to
exercise their rights to just compensation, or against
self-incrimination, or to have an abortion, but not their rights (not)
to go to church.


In short, if I'm right that the child custody hypos can't be determined
to be unconstitutional based on essentially conceptual reasoning, then
their constitutionality can't be resolved without taking a position on
the particular content and contours of the rights involved, e.g., the
free exercise right or the gun right.  And because the contents and
contours of rights differ with respect to the dimensions of purpose and
effect, the answers to the hypos could sensibly vary depending upon
which right is burdened.  And this is even putting aside Kim's sound
point that the propriety of crafting prophylactic "decision rules" to
protect against constitutional violations might depend on pragmatic and
contextual considerations (e.g., the likelihood that state actors would
be motivated by proscribed goals that adjudicators are unlikely to
catch) that could themselves sensibly dictate different doctrine in the
First Amendment and Second Amendment contexts.


Mitch Berman

The University of Texas




From: conlawprof-bounces at
[mailto:conlawprof-bounces at] On Behalf Of Volokh, Eugene
Sent: Tuesday, July 01, 2008 6:18 PM
To: conlawprof at
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


    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.




	From: Kermit Roosevelt [mailto:krooseve at] 
	Sent: Tuesday, July 01, 2008 3:41 PM
	To: lsolum at
	Cc: Volokh, Eugene; conlawprof at
	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



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