Kendall v. Kendall

[Brooks Fudenberg]

Prof. Laycock's post raises an interesting technical point:

On Wed, 10 Dec 1997, Doug Laycock wrote:

>         The Court cites an earlier opinion that talks about best interest of
> the child, but I do not read this opinion that way.  This opinion says
> parent's religious rights can be restricted only if necessary to prevent
> substantial harm to the child, that substantial harm is rarely proved
> judging by the reported cases around the country, but that substantial harm
> is proved here. ** Substantial harm to the child meets the compelling
interest
> test.**  Substantial harm does not require a psychiatric diagnosis.


(emphasis added)

I tend to think of "intermediate scrutiny" as (generally) requiring a
"substantial" state interest, and "strict scrutiny" as requiring a
"compelling" interest.  One might think that prevention of a "substantial"
harm is a "substantial" state interest.  But here it seems that prevention
of a "substantial" harm is not "substantial," but is rather "compelling."
Note that I do not doubt Prof. Laycock's reading of the case, and at
any rate, let us assume it is correct.  What makes prevention of
"substantial" harm "compelling?"  Likely, that it is substantial harm *to
a child.*  Is this correct?  And if so, does it mean that prevention of a
"rational" degree of harm to a child is a "substantial" state interest?

Brooks R. Fudenberg
University of Miami School of Law