dlaycock at MAIL.LAW.UTEXAS.EDU
Thu Dec 11 11:46:57 PST 1997
David Saperstein and I do not often disagree. Sometimes we do, but
I'm not sure this is one of those times. I read the opinion as saying all
the things he attributes to it. I agree that the identified danger of harm
to the child is real. He saved the establishment clause problems for
later, but I assume he agrees that giving a court the final word on the
religious training of a child is a dangerous expedient.
He and I may ultimately disagree on the relative magnitude of these
dangers and how to choose between them, but I doubt we disagree much about
what the dangers are. It may be too soon to tell whether we disagree on the
ultimate question, because I am frankly not sure what I think about it. I
haven't though enough about these cases, or seen enough of them, to have
much of an opinion on when the danger to the child is great enough to
justify the judge taking over.
This particular case is helped considerably by the credible finding
that two of the children already had a religious identity that they cared
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