Free Exercise Clause and child support obligation

Mon Aug 14 14:53:19 PDT 2006

Yes, on the facts as stated. Moreover, I don't think you need strict
scrutiny to reach this result. State administrative convenience and
efficiency concerns have been considered insufficient to justify laws
under intermediate level scrutiny. 

There may be problems with administering this standard -- but I think it
may not be as hard to administer an approach like this as one would
think.

(I'd be glad to send you a draft of the article, if you are interested
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 2:40 PM
To: Law & Religion issues for Law Academics
Subject: RE: Free Exercise Clause and child support obligation

	I think that under strict scrutiny, that's an eminently
plausible result; and under a state RFRA it might even be the right
result, because if the legislature concludes that it doesn't adequately
serve its goals, it can correct that.  I wonder how hard it will be to
administer, but it's certainly worth experimenting with.  Yet, Alan, do
you think that it's right to read the Free Exercise Clause (federal or
state) as mandating this result?

	Eugene

Alan Brownstein writes:

> 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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