Shielding child whose mother is A from father's B lifestyle/ideology/religion?

[marty.lederman at comcast.net]

I don't think Eugene's test case helps us see the problem clearly in these religion 
disputes.  In deciding the "best interests of the child," it is virtually 
inevitable that a court will eventually be required to evaluate the "philosophy" 
to which the child will be exposed -- a philosophy that can be conveyed through 
words or deeds.  I forget how Eugene's article came out on this, but I tend not 
to think there's much of a free speech problem here:  It's not a penalty against 
the disfavored parent so much as it is the state acting in a sort of parens 
patriae context, making the child a ward of the state in a sense for purposes of 
the custody decision.  The state is permitted to itself teach the child to 
prefer certain viewpoints -- such as that racism is bad -- and is therefore 
permitted to favor certain "viewpoints" to which the child will be exposed, as a 
virtual necessity of deciding what is "best" for the child.  It would be almost perverse not to consider what the child will be taught, and exposed to, in making such a determination.  (Think of our own 
children:  yes, of course we care for their material well-being; but most of us are fortunate enough to be able to spend much more time worrying about the values and beliefs, and modes of thinking, that our children 
will develop -- and that's a central component of what we think about when we 
consider their "best interests.")

In any event, such viewpoint discrimination is virtually inevitable in these decisions, no matter 
how much it might be difficult to square with formal free speech doctrines.  
We can assume, at the very least, that viewpoint neutrality would never be enforced in this 
area -- or not in any robust way, anyway.

*Even so* -- indeed, even if viewpoint discrimination is entirely legitimate in 
such decisions -- the Establishment Clause categorically prohibits the judge 
from evaluating whether the child would be better or worse off learning (or 
learning to reject) certain religious truths.  That's simply not a subject on which the 
state can take any view whatsoever (for various reasons, including competence).  
The state can strongly espouse the view that it's bad for children to be exposed 
to racism; but it can't take the view that children would be better off going to 
church or believing in God.

Or, at the very least, the EC problem is a serious and distinct one, whatever 
one thinks about the broader free speech problem.  Thus, if Ed is right that in these cases the bias is nearly always in favor of religion and the pretenses on which that is based are applied in a highly selective manner to reach that outcome, it's a serious EC problem, even if there's no (remediable) free speech violation.


Original message ----------------------
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>     Vance's proposed approach has the merit of being, at least facially,
> viewpoint-neutral; and I take it that it would apply to all ideologies,
> religious or otherwise.  But let me probe whether it is indeed so.  
>  
>     Say, for instance, a child has been raised in a racist household.
> After the breakup, the custodial parent remains racist.  But the
> noncustodial parent changes his views, and starts telling children that
> people of other races are OK, and even exposes the child to the
> noncustodial parent's friends of another race.  This makes the child
> "upset and scared" (the only findings of "harm" that I saw in the order,
> so we're not talking about extremely serious psychological upset).
>  
>     Under Vance's approach, I take it the court could order the
> noncustodial parent not to "expos[e the child] to any aspect of the
> lifestyle of the [noncustodial parent] which could confuse the child's
> moral and ideological formation," which is to say to the noncustodial
> parent's racially egalitarian views and lifestyle.  Likewise if the
> noncustodial parent is more open to sexual egalitarianism, religious
> tolerance, or tolerance of gays and lesbians than the custodial parent.
> Is that right?  And if in that situation the court would say "Oh, no, of
> course you can't order a parent to stop exposing the child to such good,
> helpful-to-the-child views," then doesn't that mean the standard below
> actually is viewpoint-based after all?
>  
>     Eugene
>  
> ________________________________
> 
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
> Sent: Thursday, January 24, 2008 8:52 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Shielding child whose mother is Catholic from father's
> Wiccanlifestyle?
> 
> 
> 
> 	I think Steve's message illustrates exactly the point. What's in
> the best interests of *the* child is a matter to be decided with
> reference to the particular child in question and to his/her family's
> unique circumstances. It is not a matter for ideology. 
> 	
> 	If a child is raised in a household in which differences are
> extolled and exhibited, then being exposed to them post-divorce doesn't
> in itself seem likely to harm the child. But where a family has adhered
> to a particular framework, and that framework is suddenly jolted, not
> only by the divorce but by radical changes in what had been viewed as a
> fundamental aspect of child-rearing, then it seems perfectly consistent
> with the legal standard, psychology and the still largely accepted role
> of the family, for a judge to ascertain whether harm is likely to occur,
> and take reasonable actions to prevent harm. 
> 	
> 	Imposing a Unitarian world view on, say, a Pentecostal child who
> had consistently been reared that way, while it may seem to Steve like a
> "good thing," would be the worst kind of judicial bullying, as would an
> order for a child raised in a Unitarian household to be sent off to
> Catholic school, where in each case the judge reasonably concluded that
> this would create a cognitive dissonance that could adversely affect the
> child's emotional stability. 
> 	
> 	Vance
> 	
> 
>