A judge preferring the more religious parent

marty.lederman at comcast.net marty.lederman at comcast.net
Fri Jan 25 12:26:18 PST 2008


Good question.  We've been over this before in other contexts.  First of all -- is it really the case that there's empirical evidence (as opposed to a judicial assumption based on anecdote) that a religious upbringing is more likely to keep a child out of trouble?  Religious cultures, after all, tend not to be more virtuous than those that are more secular.  If there is no such actual evidence, then I think the EC tends to disfavor reliance on "casual empirical observation" about the relative *secular* virtues of adhering to religion or not.  It's simply too likely that such "casual" observations will track unproven assumptions about the way religion (or religious belief) "works" -- including from actors who have no interest in religious "truth," as such.  This is basically the issue that often arises with charitiable choice -- government decisionmakers abjure any views on the "truth" of religious belief, but favor preferential funding of religion based on a widely held assu!
 mption,
 supported by "casual empirical observation," that religion is correlated with successful resistance to addiction, avoiding unemployment, etc.  (Bush said as much in a SOTU speech a few years back trying to justify preferences for funding religious providers -- "I've seen it work with my own eyes" -- which we discussed here.)

Ah, but what about if the empirical evidence actually *does* support a correlation, a *causal* correlation, at that, between religious piety (or belief) and some secular virtue (e.g., kindness, abiding by the law, etc.).  Well, then we're back to paragraph five of the Memorial and Remonstrance.  To the extent one thinks the M&R is or should be a guide to "proper" construction of the religion clauses, Madison says there not only that the Civil Magistrate cannot be "a competent Judge of Religious Truth," but *also* that he may not "employ Religion as an engine of Civil policy."  "The first," writes Madison, "is an arrogant pretension falsified by the contradictory opinions of Rulers in all ages, and throughout the world: the second an unhallowed perversion of the means of salvation."

I find this question fascinating -- and certainly under-examined in the doctrine and scholarship.  Don't know which way I'd come out on it.  But I'm much more confident that we should conclude the EC is violated if the judge's view is based not on hard evidence, but instead on "casual empirical observation" about the secular virtues of religious belief.


 -------------- Original message ----------------------
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
> 	Marty:  I appreciate your argument, but let me probe it a little
> further.
> 
> 	Say a judge says that it's in the child's best interests -- all
> else being equal -- to be raised a more religiously observant parent,
> rather than an atheist, agnostic, or someone who's not very devout.
> (I've found about 70 court decisions over the last 30 years that so
> hold, and I'm sure there are many others that aren't on Lexis or
> Westlaw.)  And say the judge expressly says he's *not* making this
> decision because he thinks a religious upbringing is *spiritually*
> better.  
> 
> 	Rather, he thinks it's empirically more likely, based on his
> casual empirical observation (which is generally adequate evidence) that
> a religious upbringing is more likely to keep the child out of trouble
> with crime, unwed pregnancy, drug use, and the like.  A court of appeals
> concludes the judge did not clearly err on the facts or abuse his
> discretion in applying the "best interests" standard to the facts --
> that's the usual standard of review in such cases.
> 
> 	I take it that under your "parens patriae" argument, given that
> "it is virtually inevitable that a court will eventually be required to
> evaluate the 'philosophy' to which the child will be exposed," the court
> decision has to be upheld, right, even though it discriminates based on
> viewpoint and religiosity, right?  After all, the judge isn't endorsing
> certain theological truths, just making a judgment about what's in the
> child's secular best interests.  No constitutional problem, correct?
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: marty.lederman at comcast.net [mailto:marty.lederman at comcast.net] 
> > Sent: Thursday, January 24, 2008 2:06 PM
> > To: Law & Religion issues for Law Academics; Law & Religion 
> > issues for Law Academics
> > Cc: Volokh, Eugene
> > Subject: Re: Shielding child whose mother is A from father's 
> > B lifestyle/ideology/religion?
> > 
> > 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
> > > 	
> > > 
> > > 
> > 
> > 
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see 
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> 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.



More information about the Religionlaw mailing list