I much sympathize with Ed's position, but let me probe that a
little further. First, while there's obviously a compelling government
interest in making sure that the children don't starve, that interest
isn't implicated in all child support cases. In at least some, the
mother would be able to support the child at a decent level even without
the father's help; no-one will die or be sick if the father's religious
desires are accommodated. The question is whether (1) there's a
compelling interest in making sure that even a child who's at that
adequate level of support gets still more support, or (2) there's a
compelling interest in making sure that one parent isn't required to
shoulder the entire financial burden of childrearing simply because of
his religious beliefs. I tend to think that #2 would qualify as a
compelling government interest, though I think one of the advantages of
a RFRA model rather than a constitutional exemption model is that the
legislature can get the final say on this difficult question. But I
think it's a little more complex than just saying that there's a
compelling interest that fathers support their children (since, among
other things, if the mother and father are married and jointly agree
that the father should quit work to pursue religious studies, the
government pretty clearly wouldn't have the power to force the father to
support his child).
But, second, what about the common argument made in cases such
as Sherbert and the Newark police department no-beards policy case --
that religious objections must be treated (just presumptively, subject
to strict scrutiny, or categorically, given that any other policy is
underinclusive and thus fails strict scrutiny?) no worse than other
objections? I take it that, for instance, a father wouldn't be required
to work if he's disabled, even if the disability merely makes work very
painful rather than impossible. Would a sincere religious objection to
work be entitled to the same exemption as a medical objection? Or may
the government say that avoiding physical pain is adequate reason for
not working, but avoiding violation of one's felt religious obligations
is not an adequate reason? I think the answer should be yes, but my
sense is that others have argued the contrary in other contexts.
Ed Brayton writes:
> I can't imagine such an exemption would or should be granted
> even under strict scrutiny. Clearly there is a compelling
> state interest in making sure that fathers support their
> children, and it's hard to imagine a less restrictive means
> of doing so than requiring them to contribute financially if
> they are physically able to do so. No one would even conceive
> of allowing a father to voluntarily decide to stop working to
> get out of paying child support. I can't imagine why making a
> religious excuse for such irresponsibility changes the situation any.
>
> Ed Brayton
> _______________________________________________
> To post, send message to Religionlaw@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.
>
_______________________________________________
To post, send message to Religionlaw@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.
