religion and privacy and autonomy

[Michael Dean]

I'm not sure the specific context you are looking for, but I may have an
answer for you in 4 -6 months. We are finishing summary judgment motions in
a case in the Eastern District of Wisconsin, Doe v. Heck, No. 99 C 0907.
During a child abuse investigation, police and social workers forced a
warrantless entry into a private religious school to interview a student.
Although there was no emergency, they removed the child from class and
conducted the interview without notice to the parents, over the objection of
school officials, and without seeking a court order.

Defendants claim a Wisconsin state statute is constitutional which
authorizes warrantless enter onto private property (other than the child's
home) at their sole discretion. They the claim entry was warranted because
court authorization was unnecessary under the statute and because prior
parental notice might have allowed parents to "contaminate" the interview.

As one of a number of claims, we have raised hybrid free exercise claims
which include family and individual privacy, as well as expectations of
privacy in the 4th Amendment context, but it is likely that the case will be
decided on other grounds - "straight" parental rights, 4th Amendment and due
process.

It might be helpful to look at Tenenbaum v. Williams, 193 F.3d 581 (2d
Cir.1999), Dauphin County Social Services for Children and Youth, 891 F.2d
1087 (3d Cir.1989), Darryl H. v. Coler, 801 F.2d 893, 895 (7th Cir., 1986)
and Calabretta v. Floyd, 189 F.3d 808, 817 (9th Cir. 1999). Those casese
discuss privacy interests in the context of child abuse investigations, and
Calabretta specifically discusses privacy interests in relation to a
religious, home schooling family.

You're aware of Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571
(1925), reaffirmed in Troxel v. Granville, 530 U.S. 57, 120 S. Ct.
2054(2000), which established the right to private religious education - a
free exercise interest - as emerging from the family privacy context. We are
relying on that theory in our case.

Hope this is helpful.

Mike Dean
First Freedoms Foundation

----- Original Message -----
From: "A.E. Brownstein" <aebrownstein at UCDAVIS.EDU>
To: <RELIGIONLAW at listserv.ucla.edu>
Sent: Friday, August 17, 2001 5:04 PM
Subject: religion and privacy and autonomy


> Does anyone know any judicial opinions or legal commentary that explicitly
> or implicitly identifies a relationship or analogy between free exercise
or
> establishment clause rights and rights of privacy and autonomy? I want to
> argue that the religion clauses overlap enumerated or non enumerated
rights
> of privacy and autonomy in that both principles protect self defining
> decisions of individuals or communities.
>
> Any assistance would be greatly appreciated.
>
> Alan Brownstein
> UC Davis
>
>