Kendall v. Kendall

[Rob Weinberg]

At 09:57 AM 12/13/97 -0500, Bill Rich wrote:

>The court made a factual
>determination that the Boston Church of Christ teaches that Jews (like
>others who don't accept Jesus Christ as their savior) are condemned to
>hell, and the judgment that that teaching causes serious psychological harm
>to the Kendall children because of their mother's and their own Judaism.

I'm not being facetious here, but harm to what? If it's harm to the
mother's or the children's sincerely held religious beliefs, then the court
is, I think, violating both the establishment clause and the free exercise
clause by even following that line of inquiry. If, on the other hand, the
psychological testimony is that the father's religious expression or free
speech is damaging the children's filial relationship with their mother,
then there may be a compelling state interest (although, and without
benefit of the opinion or the record, I question how narrowly tailored it is).

>The preference in the case for the mother's religion over the father's
>derives from the prior agreement of the parties, as McConnell proposes
>(rightly, I think) that it ought to.

The reference to "preference" may have been inadvertant, but even to
suggest that the court was considering a "preference" one way or the other,
and that it therefore weighed the prior agreement in that balance, is, to
me, what is problematic about this approach. I think everybody would agree
that a "preference" between religions or denominations is precisely what
the first amendment forbids. The state or the court has no compelling
interest in guaranteeing that a child is even raised one way or the other.
When it comes to what's in the child's best interest, the court's only
compelling interest that can justify arguable infringements on first
amendment freedoms is in protecting the child's filial relationship with
each of his/her parents.  That will be a matter of proof.


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    Rob Weinberg, Montgomery, AL
http://www.mindspring.com/~robertmw/