Kendall v. Kendall

[William D Rich]

At 09:23 AM 12/13/97 -0600, Rob Weinberg wrote:
>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 "harm to the mother's or the children's religious beliefs" means in
direct conflict with Judaism and consequently (1) violative of the parents'
agreement to rear the children in the Jewish faith and (2) seriously
distressing to the children, then for the reasons stated in my last reply
to Michael McConnell I don't think there's an Establishment Clause
violation.  Under Smith, I don't think there's a Free Exercise violation
because the rules of marriage and divorce applied by the Kendall court are
generally applicable.

>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).

For the reasons stated in my recent reply to Eugene Volokh, I'm not at all
sure that strict scrutiny is the applicable standard.

>>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.

I think this gets it backward.  The court didn't "weigh the prior agreement
in [the] balance" because it had a preference for Judaism; it (in a sense)
gave preference to Judaism (solely) because of the parents' prior
agreement.  My point was precisely that the preference for Judaism was
attributable entirely to the parents' prior agreement, not to the court's
own religious preference.

Bill Rich
Univ. of Akron Law School
rich at uakron.edu