Free Exercise Clause and child support obligation

[Alan Brownstein]

Quickly, Eugene is right of course that John's community service is
unlikely to be worth $4800 per month. I recognize that some exemptions
are so costly that they can not reasonably be offset by anything the
religious objector could reasonably do to disgorge the secular benefit
of an exemption -- consistent with his or her religious commitments.
Indeed, offsets may not be possible in lots of cases. When that is the
case, we are in traditional rights balancing territory. Exactly how
courts should balance the obligation to pay extremely high child support
benefits against religious commitments that make the payment of such
support impossible under a strict scrutiny regime is certainly a fair
question given the hypothetical we are considering -- but it isn't one I
have given much thought to. 

But my primary point is not that there is some wonderful doctrinal
approach that will make all free exercise exemption cases easy to
resolve. (If there is some such approach out there, I don't know what it
is.) My point is that there are doctrinal mechanisms that will help
resolve some of the concerns raised about some exemptions in some cases.
When the beneficiary of a religious exemption is required to take steps
to reduce whatever secular benefit he or she receives from the
exemption, we avoid some difficulties that make exemptions problematic.
Further, when the beneficiary "gives something back to the community" as
Jean suggested, we reduce, and perhaps eliminate, the costs incurred in
protecting the right -- which should make it easier to resolve the case
in the beneficiary's favor.

So if X owes $300 a month in child support, but because of his religious
convictions will not work for compensation. But X is willing to do
community service without pay as an orderly at a public hospital, or a
religious hospital, to help care for poor people who are ill. And if the
value of X's service as an orderly is worth around $300. I think there
is a pretty fair argument that the state should grant X the exemption
from paying child support, condition the exemption on X's performance of
community service, and take over X's obligation to provide his children
$300 per month.

Would you agree, Eugene?

Alan Brownstein

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, August 14, 2006 1:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: Free Exercise Clause and child support obligation

	Alan:  I wonder if you could discuss a little further.  Say that
John and Mary are two California lawyers with three children; they make
$200,000 each (not an unreasonable salary for a California lawyer).
John experiences a revelation and decides to join a monastery and take a
vow of poverty; he will not spend any custodial time with the children.

	Under the California child support guidelines,
http://www.west.net/~ivguy/testcalc.html, John would have to pay Mary
$4,800 per month in child support payments.  Without these payments, the
children won't starve, or won't become wards of the state; even in
California, Mary can raise her three children at a decent level on her
$200,000 per year.  But Mary still demands the $4,800 per month, because
she thinks it's not fair for her to bear the entire financial burden of
raising the children.  The state agrees, and steps in on Mary's side,
asserting what we call the Fairness-to-the-Custodial-Parent Interest.
Assume the California courts interpret the state constitution to follow
the Sherbert/Yoder model (currently an unresolved question in
California).

	Alan, do I understand correctly that strict scrutiny would bar
the state from demanding that John pay over the $4,800/month, and would
require that, if the state wants to serve the
Fairness-to-the-Custodial-Parent Interest, the state should pay Mary the
$4,800/month and instead insist that John does that amount worth of
community service instead?  Assume that John is willing to do some kinds
of work -- some monks are, to support the monastery, so he may be
willing to do the same.  What if, as is likely, he's unlikely to do
enough work to save the state $4,800/month?  Or what if he's even
willing to work half-time as a lawyer for the state, thus (let's say)
making the state the $4,800/month, but the state isn't sure that it
could trust him to produce high-quality work?  What if his community
service supervisors report that he's doing shoddy legal work; can the
state then "fire" him and insist that he take a private sector job
(contrary to his religious beliefs)?  I'm just trying to figure out how
this sort of mandatory community service will really give the state
enough revenue to offset the $4,800/month that it will be paying out of
state coffers to a woman's who earning $200,000/month.

	Eugene

Alan Brownstein writes:

> Jean makes an important point here when she states,
> 
> "I'm thinking that should a parent choose to take a vow of 
> poverty, they should be required to perform community service 
> in lieu of child support.  Give back to the community that is 
> supporting their child."
> 
> The state's interest here isn't making sure that a child 
> receives adequate food and shelter. That can be provided by 
> the state. The state's interest is money. Similarly, those of 
> us who support religious exemptions want the religious 
> individual to be free to follow his or her conscience -- but 
> we are not particularly interested in providing a religious 
> individual secular benefits incidental to the granting of an 
> exemption. One way to simultaneously offset the state's 
> increased costs and reduce the secular benefit resulting from 
> an exemption is to require the religious individual to do 
> community service -- or some other action that serves the 
> public good and disgorges the secular benefit he or she has received.
> 
> Shameless plug. I have an article coming out soon exploring 
> this general issue in more depth.
> 
> Alan Brownstein
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