Kendall v. Kendall and free speech

Stephen Gilles gilless at FS.LAW.WLU.EDU
Fri Dec 12 12:22:15 PST 1997

I agree with Eugene Volokh that there are difficult free speech
issues lurking in Kendall v Kendall.  After reading Michael
McConnell's reactions to the case (with which I generally
agree), I wonder whether the common law of contract offers a
promising way to deal with some of the free speech issues.

(1)  Consider an express agreement in which Father consents to the
children being raised in Judaism, and further agrees that Mother
shall decide how much exposure the children shall have to Father's
religious beliefs.  As applied to Kendall (assuming Orthodox Judaism
is within the scope of the original agreement), Mother should win on
contractual grounds.  Of course, as Eugene says, the state court
injunction prohibiting Father from taking his children to religious
services is a restriction on parental religious speech.  But Father
agreed to let Mother impose that restriction on him.  The court is
merely enforcing that agreement using the neutral, generally
applicable principles of contract law.  Cf. Cohen v. Cowles Media.

(2) Suppose the spousal agreement provides that the children
shall be given a Jewish upbringing but that Father may expose them to
his religious beliefs.  Then I take it Father is entitled to
take the children to religious services when they are in his
custody.  May a court override this contract term on the
grounds that it is not in the children's best interest, or that it is
doing substantial harm to them?  Here Mark Graber's
keep-the-courts-out-of-this reaction seems to me right:  the
original agreement between the parents seems more likely to
be in the children's best interests than whatever solution a court
will come up with in the context of adversarial proceedings.  For
that reason, as a matter of state family law courts should enforce
the deal the parents made when the family was still intact (and
thus insulated in its decisionmaking from judicial application of the
best interest standard).

(3) Suppose the agreement provides that the children will
receive a Jewish upbringing but is silent about Father's religious
speech.  This is the place where I'd invoke the proposition that
it's generally better for a child to be raised in one religious
tradition, not two.  If a state court adopted this view, again as a
matter of family/contract law, it might employ the following neutral
(as among religions, and as between religion and irreligion) rule:
if the parents agree that the children shall be raised in one
parent's religion, but don't specify how much exposure the children
will have to the other parent's religion, the court will interpret
their agreement to mean "only such exposure as the primary
religion-giver consents to."

(4) Now back to free speech.  So long as a state's courts
enforce express spousal agreements about religious upbringing, it
seems to me that the burden on parental free speech is
relatively modest:  either parent can by contract preserve the right
to expose the child to that parent's religious beliefs should the
marriage fail, should the other parent get custody, etc.  But
suppose the courts refuse to enforce any such agreements; instead,
they undertake a best-interests-of-the-child inquiry and apportion
authority over the children's religious upbringing between the
divorcing parents on that basis.  This alternative is much more
speech-restrictive -- in the sense that there will be more occasions
on which courts will order unconsenting parents to refrain from
engaging in religious speech to their children.  Maybe this can be
justified on the grounds that children's interests will be better
served by this approach -- but unless we're in rational basis review
that claim seems unpersuasive.  And because these are
content-based restrictions (at least; I'll bracket the
viewpoint-based question here) that involve courts
in determining whether particular values/messages have good or bad
effects on a child, there's an argument for some version of
strict scrutiny.

(5) A tentative conclusion to these tentative thoughts: if Father in
Kendall had, by agreement with Mother, expressly preserved his right
to expose their children to his religious beliefs, the Mass. courts
would violate his free speech rights if they overrode that
agreement on grounds of the children's best interests.  (If they
overrode it on "substantial harm" grounds, I'd want to look closely
at the basis for that finding).  Absent an express reservation of
rights, I'm not nearly as troubled.  Certainly one could argue
that "waiver" ought to be express, and therefore Father should win
unless he explicitly agreed *not* to expose their children to his
religious beliefs.  But perhaps the choice between those two regimes
(express reservation vs. express waiver) should lie in the discretion
of the common law courts.

Steve Gilles
Quinnipiac College School of Law (visiting at Washington & Lee)

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