Free speech, teaching of jihad, parental rights,
and children's best interests
Vance R. Koven
vrkoven at gmail.com
Thu Feb 8 12:30:00 PST 2007
I agree that the legal scope of parental authority is far greater than its
practical scope (rather like the obligations of contract). Your original
point, I take it, was that judicial usurpation of that authority under color
of a divorce decree should for those very reasons be subject to greater
scrutiny and a more bounded standard than "best interests of the child" has
so far been held to be. I agree with that as well, in principle.
Since divorce decrees are generally reviewed on appeal based only on an
abuse of discretion (somebody more familiar with family law correct me if
I'm wrong), how does the Constitution intrude itself into the exercise of a
court's discretion? Due process in these situations presumably would only
require satisfying a "rational basis" test (unlike the cases you cite
involving racial matters). It would take a very bold appellate court (give
Massachusetts a try) to rule that imposing a bygone generation's view of
domestic tranquility was not rationally related to the best interests of the
child, as opposed to being the *better* view. I even suspect that a state
with a RFRA would allow "best interest of the child" determinations to trump
a parent's religious freedom claims (I seem to recall that some already have
done).
Bottom line: if you want to raise a jihadist, be very nice to your spouse.
Vance
On 2/8/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>
> I tried to note this in my NYU L. Rev. article, in fact with a
> quote (taken somewhat out of context) from Edmund Burke:
>
> "Of course, we shouldn't overstate the practical scope of
> parental power, especially over older children. 'Despotism itself is
> obliged to truck and huckster. The Sultan gets such obedience as he
> can.' But this legally enforced parental power does exist. It makes
> the parent-child relationship different from the relationship that
> speakers usually have with listeners. And it makes legal intervention
> to prevent speech that harms the listeners more appealing."
>
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
> Sent: Thursday, February 08, 2007 4:27 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Free speech, teaching of jihad, parental rights,and
> children's best interests
>
>
> I have to take issue with one statement in your op-ed, Eugene:
> you say, "...children are immature and less able to resist their
> parents' ideological excesses." You're probably not far enough along in
> your parenting, but trust me, children have remarkable defenses (and
> offenses) of their own.
>
> More seriously, I'm troubled also by the lack of constitutional
> restraint exercised by family law judges in these cases. "Best interests
> of the child" as a legal standard probably would, on close analysis,
> fail all the vagueness tests. Where exposure to unconventional views are
> not producing *observable* psychological damage to the children, the
> state shouldn't bother --or be allowed--to impose a more conventional
> lifestyle on divorced families than it does (which is to say, barely at
> all) on intact ones. In fact, the existence of a disagreement between
> the parents on philosophical, religious and similar value points (what
> about political affiliation?) should do more to insulate children from
> undue influence than in, say, two-jihadist households.
>
> Vance
>
>
> On 2/7/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
>
> I ran across a fascinating -- and unpublished
> and
> computer-inaccessible -- new parent-child speech
> decision; I've posted
> the text at
>
> http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#117074166
> 6, and written it up in an L.A. Times op-ed available at
>
> http://www.latimes.com/news/opinion/la-oe-volokh6feb06,0,7797695.story?c
> oll=la-opinion-rightrail, but here are some excerpts
> from the trial
> court decision (which was generally upheld on appeal,
> except that the
> visitation was changed to supervised visitation,
> starting after the
> father finishes his federal probation):
>
> "The history of the relationship between the
> petitioner and
> respondent, and their conduct and beliefs, prior to
> their ultimate
> separation and divorce, may be considered "extreme" or
> non-conventional,
> especially in today's, post "9-11" world. The petitioner
> has not seen
> his children since 1997, although he has maintained
> consistent contact
> with the children, through cards and letters and speaks
> with them
> regularly by telephone.
>
> "It is uncontroverted that the petitioner is a
> repeat felony
> offender, having been convicted of, among other things,
> making terrorist
> threats and weapons possession. In fact, both the
> petitioner and
> respondent testified that they amassed a large quantity
> of weapons
> during their marriage, which in turn, resulted in the
> petitioner's most
> recent felony conviction for weapons possession. The
> petitioner was
> incarcerated at the time of the parties' divorce and it
> is
> uncontroverted that his incarceration and current
> alleged inability to
> travel, is the direct result of his criminal conduct.
>
> "During their marriage, both parties followed a
> quasi Muslim
> philosophy, including the naming of the two children
> born during their
> marriage, Mujahid Daniel and Mujahid David[.] ...
>
> "The respondent contends that due to the
> petitioner's violent
> felony conviction record, the domestic violence
> exhibited during the
> course of their marriage, his extremist views regarding
> religion,
> including his belief regarding Jihad; and the letters
> written to the
> children while he was incarcerated, lecturing about
> religion and
> reminding the children that their names are MUJAHID,
> that visitation
> should be denied....
>
> "[T]he issue before the Court is what visitation
> would be in the
> children's best interest .... [T]he children shall have
> visitation with
> their father .... The petitioner/father shall not
> discuss any issues
> pertaining to his religion or philosophy with respect to
> same, during
> any unsupervised visitation time with the children."
>
> Any thoughts on this?
>
> Eugene
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>
>
>
> --
> Vance R. Koven
> Boston, MA USA
> vrkoven at world.std.com
>
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
--
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
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